This Article reflects on the codes of conduct the United States has devised, and has improvised, during the last ten years of the Twilight War. As the polemics have subsided and policies are regularized for the long haul, I focus only on two major issues—codes for interrogating enemy captives and the code for defining the enemy. As “legal realists” have observed, legal doctrines rarely emerge from classrooms and often not even from courts. This is then a personal history of how these legal policies took shape and evolved. But one of the most important insights to take away from this historical episode was that the advocates for the radically new codes of conduct framed the issue as a legal question—substantively and bureaucratically. Instead of framing the question around what “should” be done, carefully inventorying prior U.S. and foreign experience in detention practices and interrogations and analyzing all the pros and cons, the issue was debated as one of what “can” be done. If it does nothing else, this episode should reveal the dangers implicit in this habit of thought.
The Essay also underscores the policy and even management value of well-defined, politically sustainable guidelines for secret operations to kill enemies and deal with captives. Because the government must entrust intelligence operatives with exceptional power, a fundamental social contract forms. Such a social contract is an essential foundation to granting intelligence agencies and military departments, with thousands of employees conducting many operations around the world, extraordinary powers to intercept communications, break laws in other countries, and even use lethal force to defend the country—all in secret. When the contract is broken, trust breaks down and all sides will lose.
An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this overlooked issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms under certain conditions would better reflect the basic tenets of harm-based retributivism—the theory at the heart of many sentencing schemes. The Article acknowledges some of the concerns that considering these harms raises and argues that a proximate causation analysis is essential to limit the harms considered in sentencing while acknowledging the full array of harms caused by criminal conduct. This notion of “proximate retribution” is necessary to rein in criminal liability under the theory.
Across numerous areas of the law—including family law, criminal law, labor law, health law, and other fields—when children are involved, maturity determinations are pivotal to outcomes. Upon reaching maturity, however defined, an individual has access to a range of rights not previously available and is expected to fulfill certain duties. Despite the central importance of maturity, the law’s approach to it has been to consider the concept of maturity in a piecemeal and issue-specific fashion. The result is a legal construct of maturity that is anything but consistent or coherent. For example, every state has a minimum age below which a child is considered not mature enough to consent to sex. However, if money is involved, more than forty states deem that child mature enough to have consented to sex for money and be charged with the crime of prostitution (even if the money is paid to a pimp and the child never sees it). This Article seeks to undertake a holistic assessment of the law’s approach to maturity.
Markers of maturity in the law frequently occur at different points in time. An examination of key indicators of maturity under the law reveals that the law is inconsistent, not only across issues but also within the same issues. Children are deemed mature enough to participate in the polity (e.g., vote) at a different age from when they are deemed mature enough to exercise independent economic power (e.g., work or contract), control their own bodies (e.g., engage in consensual sex), or assume adult social responsibilities (e.g., drink alcohol in public places).
In short, the law provides little clear guidance on how maturity should be understood and treated. Recent research on brain development and the work of cognitive psychologists provide some answers. To date, however, a significant consideration has been largely overlooked—cultural conceptions of maturity. Thus, this Article seeks to bring cultural perspectives on maturity into the dialogue. Ultimately, this Article aims to bring some clarity to the issue of maturity and examine whether cultural practices can inform the legal, policy, and moral questions in the law’s approach to maturity.
The death knell for print journalism has tolled ominously for fifteen years. Although newspapers have been the source of daily news for most of the world since the early seventeenth century, the immediate and widespread acceptance of the Internet and online news has likely sounded the inevitable end for newspapers. This is evidenced by the radical decline in newspaper revenues, which has caused many newspapers to go out of business and others to cut their staffs significantly.
Newspaper companies contend they are losing business to news “aggregators” who do not expend resources gathering and reporting the news, and instead distill a newspaper’s newly published content and republish it on their own websites. Consumers may then read the stories on aggregators’ websites, rather than the newspaper’s website. Several commentators and the Federal Trade Commission have suggested that the “hot news” doctrine be used to prevent the further decay of the print journalism industry, and the Second Circuit Court of Appeals recently reaffirmed the survival of the hot news tort in Barclays Capital Inc. v. Theflyonthewall.com.
This Comment argues that because the hot news doctrine provides the originator of factual information with the exclusive right to disseminate that information, the doctrine is incompatible with traditional intellectual property law and the First Amendment. As consumers and advertisers turn to the Internet for interest-focused content, the doctrine will not protect newspapers from facing financial difficulty. It, therefore, does not justify the restraint it places on the dissemination of truthful information. The potential exists for drastically better journalism in the digital world because the consumer can interact, comment, and seek out the information that is of interest to him. The courts should not hinder this development by providing newspapers with rights that were never meant to be within their power.
According to pollution-haven hypothesizers, as environmental regulations increase in First World countries and raise costs of production, pollution-intensive industries will migrate into developing countries with less-stringent regulation. This occurrence is also known as the “race to the bottom” or “industrial flight.” The result is an ironic causal chain where developed countries’ measures on behalf of sustainability become a catalyst for the exploitation of lesser protected areas and peoples.
There is much reason to believe that environmental regulation will increase in the developed world, particularly in the United States, exacerbating the potential for industrial flight and its resultant scenarios. Added attention to global warming and other environmental issues continue to spur the adoption of new regulations and standards that industries must adhere to. Resultantly, businesses worry about the effect of mounting controls on their market competition. The fear is that many corporations will move their operations overseas to countries that prioritize the benefit of economic development over the cost of environmental degradation.
While there is a heavy amount of literature on industrial flight, international environmental injustice, and redress for environmental harms, much less exists that ties these concepts together. Additionally, recent developments merit an update into the examples and obstacles of the subject. This Comment will thus provide a comprehensive investigation of pollution havens from their originating circumstances to their resulting environmental atrocities and discuss the limitations of recovery for foreign victims, as well as potential solutions to these problems.
In 1990 the Fourth Circuit held that the copyright misuse doctrine constitutes a valid affirmative defense against claims of infringement. This doctrine prohibits copyright holders from impermissibly expanding the scope of their copyrights. However, the courts have been hesitant to allow this defense in situations where copyright holders license primarily to restrict resale of copyrighted software or to prohibit third-party use of software licensed to a customer, even for general computer-servicing purposes such as trouble shooting and software maintenance. This Comment reviews the purpose of the copyright misuse doctrine and its application by the Federal Appellate Courts. It argues that in two specific scenarios the copyright misuse doctrine should be a viable defense against claims of copyright infringement.
The first scenario occurs when a copyright holder licenses its software primarily to restrict resale in the secondary market. Such licenses are simply sales disguised as licenses. Moreover, they exclusively benefit the copyright holder and entirely disregard the primary policy behind copyright law of securing for the public the benefits derived from the copyright worked. If all copyright holders began utilizing these types of licenses it could very easily lead to the demise of secondary markets, such as used book and software stores.
The second scenario occurs when a copyright holder prevents third parties from servicing a customer’s computer using software licensed to the customer. Such practices risk giving copyright holders an absolute monopoly on the service market associated with their software. While copyright law encompasses many rights, control of the service market for the copyrighted work is not one of these rights.
By providing and analyzing data about the appellate process, this study aims to help lawyers understand the types of cases that are most often reversed and the most common reasons for reversal in the Texas courts of appeals. For practitioners formulating a post-judgment strategy, this study is meant to provide a starting point toward a reasoned, accurate evaluation of the potential appeal and a tool to use in selecting the points deserving of the greatest emphasis on appeal. The study found that the statewide reversal rate in civil appeals is 36%. The study also found that the courts of appeals reverse judgments entered on jury verdicts at a higher rate than summary judgments, reflecting a recent shift toward reversing judgments entered on jury verdicts and a shift away from reversing summary judgments. Over the nine-year period since the study was last conducted, tort plaintiffs have responded to an increasingly difficult litigation climate by filing fewer cases, taking fewer cases to judgment, and appealing fewer cases to the courts of appeals. But even though tort and DTPA plaintiffs have been “picking their battles” more selectively, they have not experienced any greater success on appeal.
In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. (Festo II), the Supreme Court addressed the role of prosecution history estoppel as a limitation on the doctrine of equivalents. The Court announced three specific situations where a narrowing amendment related to patentability does not trigger prosecution history estoppel. One such situation occurs when the rationale behind a patentee’s narrowing amendment bears “no more than a tangential relation to the equivalent in question.” Nine years after Festo II, there is still no consistent definition for when a narrowing amendment is tangential.
This Comment provides the necessary framework to discern whether a tangential limitation triggers prosecution history estoppel. A narrowing amendment contains a tangential limitation when two conditions are met: (1) the patentee argues during prosecution that it made the narrowing amendment solely to distinguish its invention from a feature found in prior art; and (2) the purpose behind the narrowing amendment was to clarify a feature different from the one the patentee is asserting has been infringed under the doctrine of equivalents. Additionally, this Comment argues a limitation found in a narrowing amendment is never tangential if it specifies a limited physical range, so the patentee cannot argue something falling outside that limited range infringes under the doctrine of equivalents.
Environmental concerns pose real problems for the manufacturing industry. Not only do producers face constrained access to natural resources, but they are also under pressure from environmental action groups to reform wasteful processes. To remain competitive, manufacturers can either fashion cheaper, more disposable products or they can design products to promote repair, remanufacturing, and repurposing. But the latter solution both increases manufacturing costs and diverts potential revenue to third party remanufacturing companies. Without means of recovering these costs, manufacturers will be dissuaded from employing environmentally conscious solutions.
The patent system allows inventors to internalize research and development costs without worrying about unencumbered competition in the market for the patented item. By doing so, the patent system provides incentives to invent, disclose, and innovate. It can also provide an incentive to design for remanufacturing. Implementation of an ancillary system for tracking claims of environmental improvement within the overall body of an existing patent allows the Patent Office to offer a simple means for recovering front-end investments in environmentally conscious manufacturing. Quantitative methods already exist to classify these environmental design improvements. Patent examiners would only need to verify the improvement level of a given design process against these methods in allowing the claims. In an issued patent, remanufacturing claims would offer a defense to the doctrine of exhaustion, allowing a company to retain limited use rights in the refurbishment of its product.
The Internet—both its bright and dark sides—poses challenges not previously faced by copyright law. Adding still more provisions to an already complex Copyright Act is not the best way to respond. Rather, Congress should simplify and reconstruct the Act around five principles: (1) Copyright law should promote copyright commerce; (2) Copyright law should extend exclusive rights into every corner where they have value, except where transaction costs of harm to fundamental values outweigh the value of market transfers; (3) Copyright law should promote, not discourage, innovation in reducing transaction costs; (4) Copyright should not extend exclusive rights where the resulting harm to fundamental values outweighs the value of market transfers; and (5) A copyright statute should promote fidelity to copyright law.
Trademark: Today and Tomorrow
Words are the prototypical regulatory subjects for trademark and advertising law, despite our increasingly audiovisual economy. This word-focused baseline has continuing consequences for the Lanham Act, which often misconceives its object, resulting in confusion and incoherence.
The paper explores some of the ways courts have attempted to fit images into a word-centric model, while not fully recognizing the particular ways in which images make meaning.
Trademark: Today and Tomorrow
The functionality doctrine serves a unique role in trademark law. It is one of very few doctrines that can claim the mantle of a true defense: unlike virtually every other doctrine, a functionality finding can trump consumer understanding (or so it seems, at least in mechanical functionality cases). But despite the potential power of the doctrine, it is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine is ultimately reducible to a determination of the effect of exclusive rights on competition. And it is even worse with respect to aesthetic functionality: courts often resist applying the doctrine where it seems called for, and some even reject the concept outright. I argue that the problems with functionality are largely intractable because they reflect a much bigger problem: trademark law lacks a sufficiently robust theory of competition against which particular actions can be judged “unfair.” Courts have long struggled, for example, to determine whether patent law sets the competitive baseline with respect to functional product features such that trademark law must stay clear, or whether, instead, courts should inquire into competitive need on a case-by-case basis. And they have long simply assumed that access to mechanically useful features is much more competitively important than access to aesthetic or ornamental features, even where the evidence points rather strongly to the opposite conclusion. This Essay suggests that the functionality doctrine remains muddled because it reflects these underlying tensions, and that none of the debates can be resolved simply by reference to economics. Each view reflects a normative judgment about the “natural” structure of a competitive market.
Trademark: Today and Tomorrow
Trademark law’s goal seems, at first, wonderfully straightforward. It prevents the deception of consumers regarding the source of products and services. This, in turn, leads to an important associated benefit: investments in the quality of products and services designed to bolster trademark goodwill.
Yet when we explore contemporary trademark jurisprudence, a cast of entirely foreign commitments bedevilling this core logic confronts us. This Essay identifies four “daemons” of trademark jurisprudence, four alternative inner animi that motivate the actions of courts considering trademark cases. They are: the daemon of creativity, the daemon of identity, the daemon of
efficiency, and the daemon of fair use.
All of these daemons are well-intentioned creatures, yet none of them serve the foundational function of trademark law. Instead trademark’s daemons threaten the integrity of its mission. Accordingly, I propose that they be rooted out and exiled from the domain of trademark.
Trademark: Today and Tomorrow
Surprisingly, we still lack basic information concerning trademark application “grant rates” (i.e., the percentage of trademark applications that result in registration) at the U.S. Patent and Trademark Office. We thus lack data that are crucial to assessing, among much else, overall “trademark quality” at the PTO (i.e., the reliability of trademark registration status at the PTO as an indication of actual trademark validity). Working from a previously unstudied dataset covering U.S. federal trademark applications since the late nineteenth century, this paper reports and analyzes U.S. federal trademark application grant rates along a variety of dimensions, including by year and basis of application, by type of mark, by country of applicant, and by industry category and goods and services classification. The paper focuses in particular on the 27-year period from 1981 to 2007, during which the PTO received some 4.2 million applications for trademark registration and with respect to which the dataset’s data appear to be especially reliable.
Trademark: Today and Tomorrow
Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) “knockoffs,” in which design attributes have been copied but trademarks have not. Toward that end, as a normative matter the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible for Lanham Act protection. With enough advertising, any product feature can acquire distinctiveness. Only the assertive deployment of functionality bars by courts can prevent the illegitimate and costly construction of trademark-based product monopolies.
The purported trademark related harms that stem from the production and distribution of noncounterfeit knockoffs are, in reality, the effects of legitimate competition based on attributes such as price, quality, consumer appeal, and availability, with which trademark law should not interfere. Repressing or illegalizing knockoffs illegitimately prevents lower income people from procuring and enjoying goods with aesthetic attributes that are not properly monopolized through trademark law, and probably perversely increases the demand for counterfeit items.
When a debtor entity chooses to sell assets under Chapter 11 of the Bankruptcy Code, it may enter into an agreement with an initial “stalking horse” bidder to facilitate maximum payment of its debt. Fortunately for the stalking horse, break-up fees—mechanisms intended to reimburse an initial bidder for its expenditures leading up to an ultimately unexecuted transaction between itself and the debtor—protect stalking horses if they are outbid. However, many courts have become less willing to award break-up fees pursuant to non-bankruptcy standards of review, which are traditionally more deferential to the decisionmaking processes of the parties involved in the transaction.
A prime example of this trend is the decision of the Third Circuit Court of Appeals in In re Reliant Energy Channelview LP. In this case, the initial bidder was denied a break-up fee award because the debtor’s commitment to “seek” approval of the fee was deemed inadequate to demonstrate that the fee was necessary either to induce or maintain the initial bidder’s bid, or to preserve the value of the bankruptcy estate. Moreover, the mere presence of an alternative bidder who objected to the break-up fee provision but was not bound to submit a bid, was deemed adequate to protect the bankruptcy estate from the harm that would have arisen had it been left without a bid sufficient to cover its debts.
At first glance, the outcome in Reliant is hardly surprising given some courts’ increasing willingness to subject break-up fee provisions to greater scrutiny. However, this Note argues that the Reliant court not only lost sight of the reasons underlying bid protection mechanisms in bankruptcy asset sale agreements, but also unnecessarily subverted the reasonable business judgments of the parties in a decision that fundamentally undermines the reasoning behind bid protection mechanisms, especially in the context of solvent debtors.
After the explosion of Deepwater Horizon in the Gulf of Mexico in April 2010, Congress considered legislation aimed at increasing the liability limits placed on companies responsible for oil spills. Particularly at issue was a provision of the Oil Pollution Act of 1990 that places a $75 million legal limit on a company’s liability for economic damages as a result of an oil spill.
This Comment reviews the relevant provisions of the Oil Pollution Act of 1990 and discusses the legislative proposals considered by Congress. It argues that eliminating the cap on damages, even retroactively, would have little or no impact on the amount of recovery achieved by injured parties claiming relief from the disaster. Should Congress pursue such action, it could seriously jeopardize the current structure of the oil drilling and production industry by arbitrarily imposing additional costs on operators. It concludes by proposing that action by Congress be measured, reasoned, and deliberate, focusing on active and ongoing regulation, rather than knee-jerk legislation, as a response to short-term public outcry.
There is widespread belief in the United States that executive compensation played a significant role in the collapse of credit markets in 2007 and the subsequent financial crisis of 2008–2009 as managers took excessive risks because they were compensated for achieving short-term results. Yet even before the financial crisis, the structure and level of executive pay at public companies has been a source of intense policy debate in the United States.
The “say-on-pay” provisions of the Dodd-Frank Act of 2010 require all public companies to hold a nonbinding shareholder vote on executive pay at least every three years, beginning in 2011. This Comment argues that Congress could have done better. The managerial power theory of executive compensation holds that executives unduly influence a company’s board of directors in order to extract excess pay. If Congress intended for the Dodd-Frank say-on-pay legislation to combat excessive managerial power as the root cause of excessive managerial pay, it should have provided for public company shareholders to decide (i) whether they want to have a say-on-pay in the first place; and (ii) whether they desire a say-on-pay vote to be binding on the board of directors. Legislation allowing shareholders to “opt-in” to a vote on executive pay is the most efficient response to the managerial power problem because it gives shareholders the ability to adopt say-on-pay only when they believe it will benefit the company.
On March 10, 2011, Lamar Smith, Chairman of the House of Representatives’ Committee on the Judiciary, introduced H.R. 966, the Lawsuit Abuse Reduction Act (Sen. Charles Grassley, the ranking Republican member of the Senate Judiciary Committee, sponsored an identical measure). Animated by concern over rising costs and abuses in federal civil cases, the bills stiffen penalties against lawyers who file sanctionable papers in federal court by legislatively amending Rule 11 of the Federal Rules of Civil Procedure, the general certification and sanctions standard for federal civil cases. Aware that the political winds are pointing in LARA’s favor, my objective in this short paper is to articulate the strongest arguments against the proposed legislation. This paper expands significantly on prepared testimony I gave by invitation to a House committee regarding the legislation. My hope is that this work will make a valuable contribution to the public debate regarding this proposed, significant reform of federal practice. Briefly summarized, the paper proceeds as follows. Part I argues that the proposed legislation would not only fail to resolve the problems asserted to justify its passage but would actually increase costs and delays in federal court and foster greater litigation abuse. In Part II, I argue that there is no empirical support for the assertion that the 1993 amendments to Rule 11 can be blamed for whatever problems do exist today with federal civil litigation. Part III makes the case that LARA’s passage is not needed because there are many available alternatives for managing federal civil litigation costs and abuses. Finally, in Part IV, I demonstrate that the assertions made by LARA’s sponsors regarding the extent of costs and abuse in federal civil litigation are greatly exaggerated. Although this latter argument may have little traction in public debates over the legislation, it may be more effectively invoked in support of the institutional argument that this sort of procedural reform is best considered through the more deliberative Rules Enabling Act process. That is, reasonable legislators may be convinced that judicial rulemakers can be relied upon, as they have been for many years, to monitor the state of civil litigation and to consider reforms of the rules, as necessary, to control litigation costs and abuses.
This article proposes to repeal the QTIP provisions in order to collect revenue now for transfers that are essentially transfers to third parties and not to the decedent’s spouse. Because there are advantages of increased flexibility attendant to a QTIP as opposed to a PAT, this article proposes to take those repealed QTIP benefits and attach them to the PAT, which would greatly enhance that marital deduction trust form. A super-charged PAT would thereby be able to preserve the decedent’s GST tax exemption (like a reverse QTIP), create a decedent’s by-pass trust by allowing a PAT (or a partial PAT) “election-out,” and create a decedent’s state-only PAT marital deduction. The super-charged PAT would provide for much desired post-mortem tax planning without the complex and strict requirements of a disclaimer. Moreover, the new PAT would eliminate conflicts of interest and fiduciary problems inherent in the QTIP form of the marital deduction. Lastly, by repealing the QTIP provisions and by super-charging the PAT, the marital deduction would truly be a marital deduction and not a third party beneficiary tax deferral device.
Foodborne illnesses have changed with the times. Improper food preparation used to be the number one cause of foodborne illnesses, now it is the food itself—contaminated from fast and sloppy slaughtering. Inspection methods must, like the pathogens, keep up with the times. Though the meatpacking industry is now conducting microbiological testing, there are flaws in the pathogens selected for testing, what is being tested, when the testing is conducted, and how positive test results are treated. This Comment examines current inspection practices, indicates areas that need improving, and discusses how changes could be made to the regulatory scheme and inspection practices to reduce the number of foodborne illnesses and deaths caused by E. coli.
The North American Free Trade Agreement (NAFTA) attempts to alleviate the problems associated with risky foreign investment through its chapter on investment, Chapter 11, which creates broad substantive protections and rights for investments made among Canada, Mexico, and the United States. The main goal of NAFTA’s Chapter 11 is to promote investment among the three signatory states. With this objective in mind, Chapter 11’s protections should provide investors with security when making investments within one of the signatory states. Along with other substantive provisions, Chapter 11 includes a “Minimum Standard of Treatment” (MST) clause that guarantees investors “treatment in accordance with international law, including fair and equitable treatment” (FET). These protections—articulated in Article 1105—are designed to promote investment, encourage economic growth, and protect foreign investment from arbitrary actions by host governments.
Despite these economic goals, recent restrictive interpretations of Article 1105 have eroded the substantive protections that NAFTA’s Chapter 11 provides investors. This Comment argues that the current interpretation of NAFTA’s Article 1105 and its application of FET is economically and legally dangerous and should be expanded to provide further protection for foreign investment among the signatory states.
Inequitable conduct is often raised in modern patent litigation, shifting the focus of the litigation from the invention to the moral character of the applicants. This shift in focus costs courts substantial time and resources. In an attempt to curb overuse of the inequitable conduct defense, the Federal Circuit—via Kingsdown—implemented procedural changes affecting the likelihood of success on appeal. Perhaps not satisfied with the continued popularity of the inequitable conduct defense, the Federal Circuit’s recent ruling in Exergen also gave district courts a procedural weapon for combating the excessive pleading of inequitable conduct. This Comment discusses the nature of these procedural changes related to the inequitable conduct defense and argues that the Exergen changes are congruent with the recent Supreme Court precedent of Twombly and Iqbal.
In the landmark case of Hamilton, Chapter 13 Trustee v. Lanning, the United States Supreme Court recently decided the most controversial issue in bankruptcy law since the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). In a well-reasoned 8–1 opinion, the Court held that, in calculating a debtor’s “projected disposable income” in a Chapter 13 case, a bankruptcy court may consider “changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation” of the debtor’s plan. This issue had divided every level of federal courts and had been the subject of six differing interpretations, and the Court’s vitally important holding in favor of a forward-looking approach is consistent with the language of the Bankruptcy Code, the legislative history of BAPCPA, and the majority of the cases interpreting “projected disposable income.”
This Article analyzes each of the Supreme Court’s reasons for its interpretation of “projected disposable income,” respectively critiques the dissenting opinion, and concludes that the Court correctly held that a forward-looking approach is what Congress intended.
There is unanimity on the proposition that the attorney–client privilege protects the client’s revelations to the attorney while the overwhelming majority of courts also shield the attorney’s statements to the client. However, the picture is muddier when a third party intervenes between the client and attorney. The variation that has generated the sharpest split of authority is the fact situation in which the third party is an independent contractor expert hired by the attorney to assist in trial preparation. On the one hand, some have argued that the privilege must be adapted to recognize the modern reality of the extensive use of experts. On the other hand, the extension of the privilege to these interactions can have drastic consequences. The attorney–client privilege is absolute, and it is not subject to a client–litigant exception. Thus, if the privilege is extended to these interactions, a litigant may “shop around” until the litigant finds a favorable opinion, since the privilege will enable the litigant to suppress any unfavorable opinion. Worse still, a wealthy litigant may monopolize the experts in the field by contacting all the experts and suppressing any unfavorable opinions.
Many of the published opinions and commentaries on this problem suffer from two weaknesses. First, they are imprecise; they refer in general to the client’s “consultation” with the expert without distinguishing among the three distinct types of communication involved: the attorney’s communication with the expert when the attorney engages the expert (including revelations of the client’s disclosures to the attorney), the expert’s eventual report to the attorney, and the attorney’s ensuing advice to the client. Moreover, these opinions and commentaries often overlook the fundamental question. They address such issues as whether the expert consultant should be considered “a privileged person” or whether the attorney needs the expert’s insight in order to develop sound legal advice for the client. However, in principle the critical question is whether the specific communication in question ought to be characterized as a communication from the client to the attorney or one from the attorney to the client.
This article identifies some rare cases in which the communications exchanged in attorney-client-expert interactions warrant the protection of the attorney–client privilege. However, the article concludes that for the most part, the communications deserve at most protection under the conditional work product doctrine.
In 1964–1967, the Supreme Court put three complicated cases involving individuals in a permanent state of suspension on what would come to be known as the “Special Docket.” Under this largely unknown feature of the Court’s practice, the cases were held without decision until after the parties involved died in the 1990s. Although the impulse to mercy in these cases was understandable (all involved mental illness and two were capital cases), as a small experiment, it must be adjudged a failure because there is a reasonable possibility that in each case just outcomes were not achieved. Assuming that the Court thought judicial intervention was necessary to avoid an unjust outcome, using the normal tools of decision might have been better.
In Wyeth v. Levine, the U.S. Supreme Court considered whether a manufacturer remains responsible for updating drug labels after the postmarket discovery of new risks or whether the FDA’s drug labeling decisions preempt common law claims. To resolve this conflict, the Court defined limits that federal preemption doctrines place on federal agency decisions over common law tort claims. Or more accurately, the Court defined procedural requirements that must be satisfied before it will address the substantive problem of defining the precise preemptive scope of federal regulations. However, a number of post-Wyeth events may soon present the Court with a procedurally sufficient problem that requires articulation of the substantive application of federal preemption doctrines to decisions made by federal agencies.
Patents protecting computers and other related technologies significantly contributed to the United States’ innovation and technological growth throughout the last several decades. Notable, patents issued within the high-tech areas of invention have significantly affected the United States economy over the past several decades. Among the high-tech areas of invention, software patents arguably generated the most dynamic changes in the United States patent system over the past ten to fifteen years. Because software is such a volatile area for potential infringement suits, owners and assignees naturally prefer strong protection and enforcement of their patents.
Although the U.S. Supreme Court recently solidified software’s protection under current U.S. law, uncertainty remains as to how far that protection extends extraterritorially. Under 35 U.S.C. § 271(f), an alleged infringer is liable if he “supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention.” Despite § 271(f)’s applicability to enforcement overseas, the U.S. Supreme Court recently restricted the statute’s application for software patents. Whether the Supreme Court properly construed the statute or not, its decision clearly diminished an inventor’s capacity to enforce her software patents outside of the United States. This Comment explores the reasons why that recent dispute was decided improperly and the problems it created as a result. The Comment concludes by proposing amendments to 35 U.S.C. § 271(f) in order to provide the additional protection against extraterritorial patent infringement that Congress originally intended.
A little known federal statute, the Alien Tort Statute (ATS), grants federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Beginning in 1980 with the landmark case Filartiga v. Pena-Irala, which recognized that torture was a violation of international law that could be heard in U.S. federal courts under the ATS, the statute has transformed from an obscure item of legal trivia into an important vehicle for the enforcement of international human rights. Over the last thirty years, judges have interpreted the ATS expansively to grant federal district courts jurisdiction over a wide variety of new actions. In the 2004 case Sosa v. Alvarez-Machain, the U.S. Supreme Court construed the ATS for the first time, holding that the statute was primarily jurisdictional in nature and that the recognition of new causes of action under the statute through the federal courts’ common law authority must be done with great caution. In Sosa, the Court affirmed the Filartiga line of cases allowing the creation of new causes of action under the ATS, but the Court also made clear that the standard for recognition of new causes of action would be difficult to meet.
As liability under the ATS has continued to expand through judicial decisions, criticism of the statute’s application has become more and more heated, particularly since courts have permitted plaintiffs to proceed in suits against private corporations. Critics of the ATS have called for congressional action to close this legal loophole, but legislative efforts to do so have been fleeting at best. This Comment explains that legislative efforts to revise the ATS have failed to provide an appropriate balance between preserving the importance of the ATS in the enforcement of human rights and the legitimate political and economic concerns over liberal use of the statute. This Comment argues that the difficulties inherent in ATS litigation call for great caution in expanding liability under the statute and indicate that legislative action clarifying the jurisdiction and adapting the statute to the modern world will ultimately be preferable to the slow, convoluted path of federal common law. This Comment then proposes specific revisions that should be part of any future legislative attempts to reform litigation under the ATS.
Richard Revesz and Michael Livermore argue that environmental, health, and safety advocates’ traditional hostility to cost–benefit analysis is misplaced; instead, they say, proregulation advocates should embrace the interventionist potential of cost–benefit analysis. Their argument is both political (proregulation advocates should do cost–benefit analysis because it’s “here to stay”) and intellectual (cost–benefit analysis gives us the right answers).
On the intellectual level, I argue that cost–benefit analysis may well be incoherent, unimplementable, and morally unattractive. On the political level, cost–benefit analysis might fare better. But if Dean Revesz and Professor Livermore are right that, properly done, cost–benefit analysis might be proregulatory, their appeal to environmentalists has a corollary: perhaps it’s time for free-market advocates to reconsider their traditional support of cost–benefit analysis.
This paper, prepared as a comment on Dean Richard Revesz’s 2010 Frankel Lecture, surveys and evaluates recent developments in the regulatory oversight process, including the incorporation of behavioral economic insights, the development of a uniform federal social cost of carbon measure, and the push for greater transparency and inclusiveness.
This Address discusses the themes from the 2008 book Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health, by Richard L. Revesz and Michael A. Livermore. The authors argue that in the time since its publication, the central arguments in the book, that cost-benefit analysis is “here to stay” and that advocacy organization should learn to use it, is, if anything, even more relevant. Cost–benefit analysis has been heartily embraced by the Obama administration, through both the appointment of figures sympathetic to its use, and through its expanded use in a range of environmental and public health contexts. Advocacy groups have also begun to participate in a more robust fashion in debates over how cost-benefit analysis should be conducted. The Address concludes with a brief reply to comments offered by Professors Douglas Kysar and Alexander Volokh in this volume.
In June of 2009, Google loosened its trademark usage policy, and in February of 2011, Yahoo and Microsoft (Bing) adopted similar trademark policies. Google and other search engines allow advertisers to bid on third-party trademarked keywords, and now, in limited circumstances, allow advertisers to use those trademarked keywords in their ad text, despite the trademark owner’s objection. The comment explores a small portion of the world of pay-per-click search engine marketing and its relationship to current trademark law. The comment provides a detailed overview of the Google AdWords system, examines Google’s cost-per-click model and Quality Score, and explains the financial incentive for Google to allow advertisers to bid on trademarks. The comment analyzes three hypothetical situations where Google permits an advertiser to bid on trademarked terms and use those terms in its ad copy. The comment concludes that the risk of incurring liability when bidding on a competitor’s trademark is substantial, but there is less risk when the trademark is owned by a non-competitor.
On September 11, 2001, men with box cutters and a dark vendetta against the United States left Americans’ sense of national safety and security irreparably shattered. In the wake of the attacks, the United States and other western democracies naturally sought to adapt their legal systems so they would be better equipped to combat and prevent terrorism. In practice and design, the schemes of anti-terrorism law that have developed since 2001 have largely followed two models: the legislative model and the executive model.
The legislative model describes those counter-terror legal systems that derive authority from “special legislation establishing concrete rules and specific powers” that articulate and authorize counter-terror policies and procedures. The executive model describes those legal schemes “based not only on powers expressly recognized by legislation, but also on the powers of the executive branch, as defined by the Constitution or by very broad legislative authorizations.”
The executive model can be further deconstructed into its “pure” and “weak” forms. The “pure” form of the executive model considers unilateral executive action authorized by those powers constitutionally allocated to the executive branch. The “weak” form requires a transfer of power from the legislative branch to the executive through sweeping legislative authorizations of executive action while “leaving normative choices to the executive.”
The legislative and executive models of counter-terror legal schemes are not mutually exclusive. They frequently overlap or change depending on the overarching political systems within which they function and the specific situations to which they are applied. The distinction between the two models, however nebulous it may be, helps illustrate the choices political leaders have when deciding what anti-terrorism measures should be taken and how they should be implemented.
The United States’ legal response to national security emergencies has traditionally been consistent with a pure/weak hybrid form of the executive model as evidenced by the nation’s history and constitutional design. The Bush Administration’s assertions of executive power in the wake of the September 11th attacks, however, shifted U.S. national security policy decisively toward the pure form of the executive model. The creation, enforcement, and survival of detention policy during and after the Bush years well illustrate how the Administration harnessed independent executive powers to effectively cut the Court and Congress out of the War on Terror.
This Comment examines the Bush Administration’s active expansion of presidential power through the lens of detention policy between 2000 and 2008, explains how these policies rendered the U.S. counter-terror legal system consistent with the pure form of the executive model, proposes the redirection of counter-terror policy toward a system that more closely resembles the weak form of the executive model, and analyzes the changes the Obama Administration has made to detention policy in light of this proposed transition. Part II outlines the evolution of conflict between the courts and the President regarding the extent of executive emergency power. Part III examines the Supreme Court’s struggle to preserve checks and balances after the September 11th attacks through litigation surrounding the treatment of War on Terror detainees, while the Bush Administration and a compliant Congress siphoned tremendous power to the executive branch in the name of national security. Part IV analyzes the risks associated with operating the counter-terror legal scheme within the pure form of the executive model and considers ways to scale back executive power while retaining the flexibility the President needs to effectively address post-9/11 national crises. Part V examines detention policy under the Obama Administration in terms of this proposed transition, and concludes the new President intends to continue his predecessor’s practice of using independent executive powers to commandeer a counter-terror legal system increasingly based on the pure form of the executive model.
In Massachusetts v. EPA, the Court prompted the EPA to determine whether greenhouse gas (GHG) endangers human health and welfare, and consequently whether GHG should be regulated under the Clean Air Act (CAA). Since then, the EPA has issued a series of regulatory actions in response, culminating in a “tailoring rule” designed to regulate GHG emissions from large sources while avoiding regulation of smaller sources. The problem is that the CAA does not allow for the distinction between larger and smaller sources proposed in the tailoring rule. The EPA seeks to justify the proposed deviation from the statute by using the controversial “absurd results” and “administrative necessity” doctrines.
This Comment examines the efforts to regulate GHG under the CAA and highlights some flaws in the current approach. It begins with a brief summary of certain provisions of the CAA, focusing on the sections pertaining to GHG regulation. Then, it reviews Massachusetts and the subsequent EPA actions, focusing on potential arguments against the proposed rules. The Comment concludes by arguing that under a permissible reading of the statute, it is unnecessary to apply the “absurd results” and “administrative necessity” doctrines, and therefore the EPA should not be allowed to do so.
An average of one million people receives U.S. naturalization annually. Understanding the nature of U.S. citizenship—or more particularly, the gatekeepers of U.S. citizenship—is thus crucial. One of these gatekeepers has recently been reconstructed following several years of redesign. In 2008, the U.S. Government introduced a new citizenship test that professes to focus on the substantive understanding of fundamental concepts of U.S. history and civics rather than memorization of random trivia, as was tested by the old citizenship test.
This Article is the first to analyze the normative aspects associated with the new U.S. citizenship test and seeks to challenge the test’s purpose, subject matter, format, ideology, and justification. It opines that the test has failed to achieve the main goal of the redesign process: to create a more meaningful test. While the test creates “summa cum laude immigrants” in U.S. history and civics, their understanding is still fleeting. It requires new Americans to memorize esoteric issues, such as the location of the Statue of Liberty, while ignoring the understanding of important ideas, such as liberty and equal protection.
The manner new Americans are “created” is a political decision. The choices made today are likely to influence society tomorrow. The citizenship test is a great platform to examine these choices. This Article calls for a complete reassessment of the concept of citizenship tests.
This Article examines the use of patents to hide problems. It explores examples of patent cover-up in the areas of identification chips, genetic testing, and agricultural biotechnology. I discuss how much control patent holders should be able to exercise over information related to their technology. Information resulting from independent quality assessment should be beyond the patent holder’s reach, considering its significance to privacy, health, and security. Unless courts interpret existing patent doctrines broadly enough to permit quality assessment, I propose that Congress or the courts should adopt a defense to infringement to allow for it.
The proposed exception would allow for the use of a patented invention for quality assessment of technology covered by the patent. Quality assessment includes activities necessary to identify and analyze limitations, accuracy, validity, and weaknesses of the patented invention. Previous proposals to expand protection for experimental or fair uses have concentrated on the importance of improvements and alternatives. The proposed exception focuses on the value of information. Because the quality assessment exception does not protect substitutes that could supplant demand for the patented technology, it is less likely to undercut incentives to innovate. An exception permitting quality assessment strikes a reasonable balance between the normal exploitation of the patent and the legitimate interests of the public.
Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case during a ten-year period in which a court labeled the speech or behavior of a lawyer “uncivil,” “offensive,” or “unprofessional.” In each of these cases, the same judge or disciplinary tribunal made a subsequent decision: whether to impose some form of sanction beyond merely condemning the attorney’s behavior by labeling it unprofessional or lacking in civility. Statistical analysis of this database of 315 cases confirmed the predictive value of the theory: the lawyers in this data pool at the greatest risk of being sanctioned for incivility beyond condemnation in a reported opinion were those who represented individuals (rather than entities), spoke defiantly to judges, and were accused of making false statements about the qualifications or integrity of judges.
The article’s analysis of the Michigan Bar’s efforts to sanction well-known attorney Geoffrey Fieger for criticizing the judiciary, identifies other problems associated with the legal profession’s current approach to incivility. Framing these issues as primarily about attorneys’ rights to speak freely produces a doctrinal stalemate between professionalism’s laudatory goals of protecting the rule of law and the integrity of the judicial system, and their devastating First Amendment critique. The article suggests that the way around the impasse is for legal actors to be better informed by the concerns other disciplines have voiced about punishing citizens in a democratic society for being impolite, and to acknowledge the contingent nature of our judgments that certain speech or behavior is rude, impolite, offensiveness or disrespectful. The article concludes that making civility a more democratic norm requires greater restraint and respect. Unless a court’s ability to administer justice in a pending case is threatened, the government should refrain from legislating proper behavior and respect the rights of lawyers to use their freedom in ways some find inappropriate.
The material support bar and the persecutor bar preclude a grant of asylum to anyone who has either afforded material support to a terrorist organization or assisted in the persecution of others. These statutory bars to asylum are construed broadly and do not recognize a duress exception. As a result, hundreds of refugees, including child soldiers and women and children victimized by guerilla warfare, are denied immigration relief. In Negusie v. Holder, the Supreme Court undercut the broad application of the persecutor bar and found that the voluntariness of an individual’s action is relevant to the question of whether the persecutor bar should apply. The Negusie decision has laid the analytical foundation for a statutory duress exemption in the analogous material support bar context. As a result, Congress should amend the Immigration & Nationality Act to include an explicit duress exception to the material support bar.
Prior to its amendment in the Fraud Enforcement and Recovery Act of 2009, the False Claims Act was criticized as lacking an understanding of the complex commercial structure of the modern United States and the culpability that should attach for inaccurate statements made in transactions with the federal government. FERA’s removal of the only real methods of reining in a potentially limitless statute has magnified those concerns. The amendments eliminate both statutory and judicial limitations that rationally prevented the reach of the FCA from encroaching into the entire commercial marketplace. The removal of the presentment and intent requirements in conjunction with the amended definition of “claim” will place countless entities far removed from the government itself at risk of falling under the statute’s draconian penalties. To prevent such results, courts should rely on strict interpretations of the newly codified materiality requirement and place heavy emphasis on legislative history, thereby requiring that the transaction be predominantly federal in character. Regardless of the success of these methods, the coming years will likely be filled with tremendous amounts of litigation attempting to clarify FERA’s complex language and to constrain its almost limitless realm of potential liability.
The underlying premise of Citizens United v. FEC—that the free speech rights of “associations” of individuals who have organized as corporations must be respected as much as the rights of the individuals themselves—misunderstands the modern structure of the corporation and the nature of corporate decision making in the modern era. Unlike the businesses called “corporations” that were in existence at the time the First Amendment was adopted, modern for-profit corporations do not produce decisions that represent the individual “owners” of those businesses, or coincide with the interests of the public. In designing a legislative response to corporate participation in federal elections, Congress had not attempted to preclude corporations from speaking or participating in the political process. Congress had reached a bipartisan consensus that there was a real danger in allowing direct and unlimited participation in federal elections. Citizens United reached the wrong result when it struck down this legislation, both on the grounds that the modern corporation differs fundamentally from its historical precursors and because public policy does not support allowing such unregulated involvement of corporate “persons” in the political process.
For Judge John R. Brown, no court worthy of its name ignores the reality of the society it inhabits, even if that forces an uncomfortable confrontation with grave wrongs. In certain contemporary events, such as Bush v. Gore and the Global War on Terrorism, we can see the judiciary accepting the challenge of confronting institutional failure. By trial and error, by hope and by need, the United States has developed a judiciary capable of rescuing our national ambitions and our national institutions in times of stress. At those moments, we call upon our judges, men and women drawn from the main walks of American life, to rise above their station and to address the demands of extraordinary times.
In contrast to the predominant scholarly view, our article contends that the influential Legal Realist Movement of the 1930s was actually two movements—radical legal realism and conservative legal realism (CLR). CLR is best understood through the works of Nathan Isaacs. This article investigates the legitimacy and determinacy of the legal order through Isaacs’ representation of the CLR lens.
In light of the current economic crisis, Isaacs and CLR are especially worthy subjects for study. Much like the Great Depression, the crisis has spurred many people to question core capitalistic premises, such as the superiority of minimal government regulation of business and the structuring of financial instruments through freedom of contract. CLR’s merger of anti-formalism and an idealism inspired by the Jewish legal tradition resulted in its rejection of Lochner-era judicial decision-making and its support for an attack on the constitutionality of New Deal interventionism.
CLR asserts that although legal rules provide indeterminate answers in hard cases, principle-guided rules lead to correct answers. CLR calls on judges to continuously strive to uncover objective principles underlying the rules and to understand their historical evolution. Isaacs sought to blend an evolving but cyclical organic theory of legal development with the pragmatism needed to make rules workable. To do this, the contingent nature of law must be contained within a framework of moral, political, and cultural values. This framework characterizes CLR as both a critical and positive theory of the legal order. This fusion of an organic natural law with the inherent indeterminacy of legal conceptualism moves beyond rules to a principle-based contextualism.
We use previously neglected archival material, found in the Harvard Law and Business Schools’ “Special Collections,” as well as other archives, to connect Isaacs to major figures in the Legal Realist Movement. Isaacs’ broad contextual framework enabled him to play a pioneering role in the development of the social-scientific study of law and the critique of legal formalism that was the basis for the Legal Realist Movement. His belief in the integrity of the legal order, however, moved him beyond rule skepticism. His understanding of the dynamic nature of law provide insights into constitutional interpretation, cycle theory of legal development, status-based regulation of standard form contracts, re-conceptualization of law, and the need for an interdisciplinary approach to law study and reform.
Immigration scholars have traditionally focused on the role of national borders and the significance of nation-state citizenship. At the same time, local government scholars have called attention to the significance of local boundaries, the consequences of municipal residency, and the influence of the two on the fragmentation of American society. This paper explores the interplay between these two mechanisms of spatial and community controls. Emphasizing their doctrinal and historic commonalities, this article suggests that the legal structure responsible for local fragmentation can be understood as second-order immigration regulation. It is a mechanism that allows for finer regulatory control than the crude boundary and membership regulations at the national level. It also serves as a means by which, in the absence of a national consensus, the competing interests surrounding immigration can still be negotiated and reconciled on the ground. Not only does this framework provide a conceptual bridge that unifies boundary and membership controls that until now have been perceived as disparate and unconnected areas of law, but it also raises important questions about policies at the heart of today’s immigration debates.