48:4 Trademark’s Daemons

Trademark: Today and Tomorrow

Abstract

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.

48:4 Is the Trademark Office a Rubber Stamp?

Trademark: Today and Tomorrow

Abstract

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.

48:4 Counterfeits, Copying and Class

Trademark: Today and Tomorrow

Abstract

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.

48:3 Give Me a Break-up Fee: In Re Reliant Energy Channelview LP and the Third Circuit’s Improper Rejection of a Bankruptcy Bid Protection Provision

Note

Abstract

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.

48:3 Deepwater Horizon: Rethinking OPA’s Liability Limitations in the Wake of Environmental Disaster

Comment

Abstract

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.

48:3 An Efficient “Say” On Executive Pay: Shareholder Opt-in as a Solution to the Managerial Power Problem

Comment

Abstract

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.

48:3 The Case Against the Lawsuit Abuse Reduction Act of 2011

Article

Abstract

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.

48:3 The New Super-Charged PAT (Power of Appointment Trust)

Article

Abstract

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.

48:3 On Babies and Bath Water: The Arbitration Fairness Act and the Supreme Court’s Recent Arbitration Jurisprudence

Article

48:2 A Flawed Inspection System: Improvements to Current USDA Inspection Practices Needed to Ensure Safer Beef Products

Comment

Abstract

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.

48:2 Broadening NAFTA Article 1105 Protections: A Small Price for International Investment

Comment

Abstract

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.

48:2 Specifically Fighting Inequitable Conduct

Comment

Abstract

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.

48:2 Final Score on “Projected Disposable Income”: Forward-Looking Approach (8), Mechanical Approach (1)

Article

Abstract

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.

48:2 The Application of the Attorney-Client Privilege to Interactions Among Clients, Attorneys, and Experts in the Age of Consultants: The Need for a More Precise, Fundamental Analysis

Article

Abstract

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.

48:2 Reaching Out to Do Justice: The Rise and Fall of the Special Docket of the U.S. Supreme Court

Article

Abstract

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.

48:1 Wyeth v. Levine: FDA Attempt to Preempt Common Law Claims Deemed Procedurally Deficient but Sets the Stage for Future Consideration of Substantive Sufficiency

Note

Abstract

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.

48:1 Extraterritorial Software Protection Under § 271(f): A Call to Congress to Fix a Statute That Was Not Broken

Comment

Abstract

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.

48:1 Alien Tort Reform: A Proposal to Revise the Alien Tort Statute

Comment

Abstract

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.

48:1 Rationality or Rationalism? The Positive and Normative Flaws of Cost-Benefit Analysis

Commentary

Abstract

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.

48:1 Politics By Other Means: A Comment On “Retaking Rationality Two Years Later“

Commentary

Abstract

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.

48:1 Retaking Rationality Two Years Later

Address

Abstract

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.

47:5 Quality Scores a Lawsuit: Google’s New Trademark Rules and Advertiser Liability for Trademark Infringement

Article

Abstract

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.

47:5 The Price of Purity: Weakening the Executive Model of the United States’ Counter-Terror Legal System

Article

Abstract

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.

47:5 Double Absurdity: Regulating Greenhouse Gas Under the Clean Air Act

Article

Abstract

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.

47:5 Creating New Americans: The Essence of Americanism Under the Citizenship Test

Article

Abstract

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.

47:5 Patent Cover-Up

Article

Abstract

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.

47:5 Making Civility Democratic

Article

Abstract

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.

47:3 Change is Coming: Rethinking the Material Support Bar Following the Supreme Court’s Holding in Negusie v. Holder

Comment

Abstract

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.

47:3 A Fraud Against One Is Apparently a Fraud Against All: The Fraud Enforcement and Recovery Act’s Unprecedented Expansion of Liability Under the False Claims Act

Comment

Abstract

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.

47:3 “A Corporation Has No Soul”—Modern Corporations, Corporate Governance, and Involvement in the Political Process

Article

Abstract

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.

47:3 Judging in the Time of the Extraordinary

Judge John R. Brown Memorial Lecture

Abstract

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.

47:2 Beyond Rules

Article

Abstract

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.

47:2 Local Fragmentation as Immigration Regulation

Article

Abstract

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.

47:2 Deep Links: Does Knowledge of the Law Change Managers’ Perceptions of the Role of Law and Ethics in Business?

Article

Abstract

Can knowledge of the law lead to a higher likelihood of ethical and legally compliant behavior? Our preliminary research suggests that it can. We surveyed 112 MBA students to ascertain their perceptions of the role of law in business as well as to determine whether a course in law had any impact on their perceptions. Our findings suggest that knowledge of the law can prompt managers to become more legally compliant and more socially responsible. Deeper probing with the Zaltman Metaphor Elicitation Technique revealed three deep metaphors of the role of law in business: system, moral balance, and force.

The results of both the quantitative and qualitative research suggest that an integrated approach to law, business, and ethics would be more effective in making managers more legally compliant and ethical than training in business law or ethics taken alone. Our research also suggests that attorneys who understand how managers conceptualize the role of law in business may be more effective advocates for legal and ethical compliance. Ignoring the role law plays in making markets possible threatens to undermine managers’ appreciation of the manner in which law undergirds the capitalist system. Teaching materials that highlight the linkages between law, business, and societal welfare would appear to have a greater likelihood of altering managers’ perceptions and thus their behavior than simply exhorting managers to be ethical or to comply with the law.