Showing papers in "Notre Dame Law Review in 2017"

The Criminalization of Compliance

Abstract: Corporate compliance is becoming increasingly "criminalized. " What began as a means of industry self-regulation has morphed into a multi-billion-dollar effort to avoid government intervention in business, specifically criminal and quasi-criminal investigations and prosecutions. In order to avoid application of the criminal law, companies have adopted compliance programs that are motivated by and mimic that law, using the precepts of criminal legislation, enforcement, and adjudication to advance their compliance goals. This approach to compliance is inherently flawed, however--it can never be fully effective in abating corporate wrongdoing. Criminalized compliance regimes are inherently ineffective because they impose unintended behavioral consequences on corporate employees. Employees subject to criminalized compliance have greater opportunities to rationalize their future unethical or illegal behavior. Rationalizations are a key component in the psychological process necessary for the commission of corporate crime--they allow offenders to square their self-perception as "good people" with the illegal behavior they are contemplating, thereby allowing the behavior to go forward. Criminalized compliance regimes fuel these rationalizations, and in turn, bad corporate conduct. By importing into the corporation many of the criminal law's delegitimizing features, criminalized compliance creates space for rationalizations, facilitating the necessary precursors to the commission of white collar and corporate crime. The result is that many compliance programs, by mimicking the criminal law in hopes of reducing employee misconduct, are actually fostering it. This insight, which offers a new way of conceptualizing corporate compliance, explains the ineffectiveness of many compliance programs and also suggests how companies might go about fixing them. Introduction In 2001, the Harvard Business Review published a profile of Intel's antitrust compliance program. The article described how the company's aggressive approach to compliance, which had become an "integral element in the chip maker's business strategy," allowed it to avoid the type of litigation and regulatory intervention that was miring rival Microsoft at the time. (1) According to the authors, Intel's compliance efforts provided a "valuable model for any enterprise that may come under regulators' scrutiny." (2) The centerpiece of the program was Intel's "active approach" to compliance. The brainchild of CEO Andy Grove and general counsel Tom Dunlap, active compliance mimicked the actions of aggressive regulators seeking evidence of corporate illegality. (3) After employees were trained in the "basic dos and don'ts" of antitrust--no price fixing, no exclusive contracts, no talking to competitors about pricing strategies--the legal department would conduct random audits of employee files. (4) Beginning with senior managers and "fann[ing] out through the company," Intel lawyers would "swoop in" and seize papers, disks, and emails, anything that might be demanded by the Federal Trade Commission (FTC) or the Department of justice (DOJ) during an actual investigation. (5) If any irregularities were found, the seized materials would be used in a mock deposition of the senior executive in charge of the offending business unit. During the deposition, outside attorneys would cross-examine the executive in front of his or her colleagues, sometimes for more than an hour, attempting to establish that criminal statutes and regulations had been violated. Dunlap explained that these role-playing exercises served as a dramatic wake-up call for lax executives, giving them the experience of being in the crosshairs of a government investigation. (6) "Think about it: If you see a senior executive being grilled in front of his peers, will you write memos that will make you squirm? Will you let your people say things that will come back to haunt you?" (7) Dunlap suggested that Intel's approach to compliance was "the world's best. …

Copyright and Distributive Justice

Abstract: INTRODUCTION I. RAWLSIAN JUSTICE, HOW RAWLS USES "PROPERTY," AND THE PROPRIETY OF USING RAWLS A. A Primer on Rawlsian Justice B. High Concepts, Practical Application II. PRACTICAL RAWLSIAN JUSTICE, DISTRIBUTIVE REALITIES OF COPYRIGHT A. The Difference Principle and Jobs, Income, and Wealth from Copyright 1. Income to Creative Professionals in the Music Industry 2. Copyright Interests of Individuals Through the Lens of Litigation B. What About Lost Utility Among Poorer Consumers from Above-Margin Prices and Deadweight Losses? C. Copyright and the Just Savings Principle D. Copy right and Conditions of Fair Equality of Opportunity--and the Hard-to-Miss Experience of African Americans 1. Observations to Date About Copyright and African Americans 2. Copyright and Positions "Open to Everyone Under Conditions of Fair Equality of Opportunity" 3. Further Considerations on Copyright and "Conditions of Fair Equality of Opportunity" III. DISTRIBUTIVE BELLS AND WHISTLES OF COPYRIGHT--CURRENT AND PROSPECTIVE A. Procedural Protection of Authors B. Termination of Transfer in American Copyright Law 1. The Clear Intent of Termination Is Redistribution of Wealth 2. The Work-for-Hire Doctrine in Relation to Redistribution of Wealth C. The Emerging Trend Toward Droit de Suite D. Other Redistributive Bells and Whistles--Real and Prospective CONCLUSION INTRODUCTION Is our copyright system basically fair? Does it exacerbate or ameliorate the skewed distribution of wealth in our society? Does it do anything at all for disempowered people, people at the bottom of the socio-economic hierarchy? In this Article we engage these questions. Our goal is to begin a more comprehensive discussion of the effect the copyright system has on the allocation of wealth in our society. These questions of distributive justice are atypical in scholarship on copyright law. (1) To begin with, the dominant methodological approach in the field emphasizes incentives for aggregate production of information goods. (2) The primary aim of this utilitarian framework is to provide economic encouragement to creators while insuring maximum access to the works creators produce. Put differently, the traditional utilitarian theory sees copyright incentives as the mechanism through which society regulates the reward to creators. The goal is to set the incentives just right, so society receives the maximum number of works of the highest quality at the lowest possible overall social cost. A hefty chunk of this literature has sought to cast doubt on the need for copyright--or at least copyright in its present form and strength--to generate all the original expression we have (or want). (3) More recently, academic commentators have started to focus on the "distributive" aspects of copyright and, not surprisingly, this work has shadowed the incentive-based analyses by focusing on information distribution. Commentators working this territory have raised concerns about the general diffusion of knowledge, (4) about availability of materials in minority languages, (5) and about the ability of subsequent creators to create new expression using existing, copyright-protected expression. (6) How much wealth copyright incentives create--and who holds that wealth--are at best secondary concerns. The closest many scholars get to recognizing copyright's direct effect on income and wealth is to note that large corporate interests, and not individual creators, wind up enjoying copyright's bounty. Copyright scholarship is replete with what we call the "corporate copyright trope," i.e., that the "bulk of [copyright's] expansion has enriched copyright intermediaries, rather than creators and readers," (7) that "increasingly intellectual properties underwrite the 'private' sovereignties of multinational corporations," (8) and that "there is data aplenty to suggest that most creative people don't enjoy significant benefits from the operation of copyright--at least in comparison to those which accrue to firms that function as intermediaries between creators and audiences. …

Risk Regulation and Innovation: The Case of Rights-Encumbered Biomedical Data Silos

Abstract: Recent Supreme Court cases on patent-eligible subject matter are likely to exacerbate the longstanding problem of biomedical data fragmentation. For each data silo, multiple overlapping legal claims and claimants must be addressed to achieve the benefits of pooling. Commentators who have discussed the data aggregation challenge have generally focused on possibilities created through public funding, through collective action by research participants, or through pressure by payers. This Article emphasizes the important role of risk regulators, most notably the precedent offered by risk regulation in the area of clinical trial data. While U.S. risk regulators have taken some positive steps, the recent actions of their European counterpart, the European Medicines Agency (EMA), have been particularly creative. Indeed, because data is a global public good, the EMA's actions create a global baseline for access. Private-sector data pooling spurred by threats of regulatory action is also a positive development. Finally, in those advanced economies that have such exclusivity, data exclusivity that runs concurrently with any patents emerges as an attractive mechanism for balancing the interests of initial and subsequent data generators. In elucidating the role of risk regulators, this Article contributes another chapter to the rich legal and economic literature discussing whether, and how, risk and social regulation can promote socially valuable innovation. As contrasted with much of this literature, however, the Article focuses not on innovation induced by efforts to comply with regulation but instead on regulation as a force for creating a data infrastructure for future innovation.

Spill Your (Trade) Secrets: Knowledge Networks as Innovation Drivers

Abstract: Theories of intellectual property take the individual inventor or the firm as the unit of innovation. But studies in economic sociology show that in complex fields where knowledge is rapidly advancing and widely dispersed among different firms, the locus of innovation is neither an individual nor a single firm. Rather, innovative ideas originate in the informal networks of learning and collaboration that cut across firms. Understanding innovation in this subset of industries as emerging out of networks of informal information-sharing across firms challenges traditional utilitarian theories of trade secret law — which assume trade secret protection is needed to prevent excessive private, self-help efforts to preserve secrecy. Doctrinally, knowledge network research suggests that the scope of trade secret protection in these industries should be narrow. In these industries, strong trade secret rights that grant managers tight control over employee-inventors’ informal information-sharing practices are bad innovation policy. Rather, optimizing trade secret law requires tailoring the strength of protection to match industry characteristics, narrowing trade secret scope in those industries where informal information-sharing networks play a prominent role. In turn, because industry types tend to cluster around geographic centers, the importance of tailoring cautions against current trends towards uniformity by federalizing trade secret law and favors state experimentalism in designing trade secret law and policy.

Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions

Abstract: I am honored to be back at Notre Dame Law School. This is one of the very best law schools in the United States. I love coming here. I thank the Law Review for hosting this symposium in honor of Justice Scalia. I am grateful to Professor Barrett for the generous introduction and for her outstanding scholarship and teaching at this law school. She is an inspiration to her students and an inspiration to me. I thank my many friends on the faculty for being here. I want to single out my longtime friend and colleague Bill Kelley. We have worked together on many challenging assignments in the past. He is a special person and a great teacher, scholar, and lawyer. I am proud to be his friend. I am Catholic. This university holds a special place in the hearts and minds of most American Catholics, and it represents the best of the Catholic educational tradition. That tradition is one that emphasizes service--caring for the poor, the neglected, the vulnerable. It lives out the Gospel of Matthew and teaches that your most important duty is to take care of the least of your brothers and sisters. At the same time, this university's tradition is one of inclusiveness, of welcoming people of all faiths and beliefs. And the tradition is one of teaching and learning, always probing and studying and thinking about how to make our country and our world a better place. When I received the invitation to be here, 1 will admit that I glanced at the schedules for both the women's and men's basketball teams and hoped I might be able to catch a game. Alas, no home games this week. I recall that my very first trip to Notre Dame was almost exactly thirty years ago to the day to watch Notre Dame play against then-number-one North Carolina in men's basketball. I was here with a bunch of my Georgetown Prep high school friends who went to Notre Dame. Notre Dame upset North Carolina, and it was a raucous scene and a wild weekend. Fortunately, there was no social media back then. Just a couple of nights ago, Neil Gorsuch was nominated to the Supreme Court. Neil and I actually went to high school together at Georgetown Prep. I was two years ahead of him. And then we clerked together the same year for justice Kennedy and got to know each other very well. We worked together in the Bush Administration, and we both became judges in 2006. We serve together now on the Appellate Rules Committee of the Judicial Conference, and were coauthors along with Bryan Garner and several other judges of a book on precedent. (1) Don't try to read that book all at once is my only piece of advice. So I know Neil Gorsuch well and have known him seemingly forever. He is a good friend. He is kind, funny, hard working, and brilliant. He's a great writer and independent. With his smarts, his character, and his understanding of life and law, I firmly believe he will be one of the great Justices in Supreme Court history, like a Jackson or a Scalia. Watching him the other night, I felt immensely and overwhelmingly proud of him. And proud of Georgetown Prep, I might add. Neil was of course nominated to replace Justice Scalia, for whom we are gathered here. I do not want to overstate my relationship with Justice Scalia. But I loved the guy. For starters, lie was always so funny when I saw him at dinners or legal events or anywhere. He had a magnificent wit and put everyone at ease. But beyond that, Justice Scalia was and remains a judicial hero and role model to many throughout America. He thought carefully about his principles, he articulated those principles, and he stood up for those principles. As a judge, he did not buckle to political or academic pressure from the right or the left. He was fiercely independent. For many decades, moreover, he tirelessly and at substantial financial sacrifice devoted himself to public service, teaching, and lecturing. We all benefited from that. If you asked him to do something, he said yes if there was any way he could possibly do it. …

Internet Safe Harbors and the Transformation of Copyright Law

Abstract: This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.

Courting Disaster: Climate Change and the Adjudication of Catastrophe

Abstract: Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop of a potentially existential threat, judges redeem the very possibility of law when they forthrightly confront the merits of climate lawsuits. Conversely, when they use weak preliminary and procedural maneuvers to avoid such confrontation, judges reinforce a sense of law’s disappearance into the maw of normative rupture.

The Nondelegation Doctrine: Alive and Well

Abstract: The nondelegation doctrine is dead It is difficult to think of a more frequently repeated or widely accepted legal conclusion For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity In this Article, we argue that the conventional wisdom is mistaken in an important respect Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well

The Privatized American Family

Abstract: U.S. law once buffered families from market forces through subsidizing mothers to stay home and care for children, as well as through absorbing financial costs and risks that could threaten families’ wellbeing. In the last decades, though, the law has increasingly “privatized” families, expecting them to negotiate these responsibilities individually. This Article demonstrates the serious toll that the privatized-family system takes on the wellbeing of U.S. families, and sets out a plan for reform. Part I examines the privatized system’s impact on U.S. families by integrating comparative research on welfare-state regimes with updated empirical data on families. The harms imposed are certainly more severe for families in the lower-income strata, where market forces reduce adults’ chances to achieve stable partnerships and raise children in two-parent families. Yet well-to-do families also struggle increasingly with balancing rising work hours with family demands. Further, the privatized-family system impedes optimal development of children from all income levels, although it inflicts the most damage on poor children. Part II considers the privatized-family model in historical context. In stark contrast to the current model, the twentieth-century welfare state was grounded on the view that government had an integral role in regulating markets to support families. In carrying out this function, this regulation assumed a male-breadwinner/female-caretaker distribution of labor. Beginning in the 1970s, as women began to enter paid work, this regulation came under fire for its sexist assumptions. Although other wealthy democracies continued to buffer families from market forces while jettisoning sexist preconceptions, the United States became an outlier among its peers in eliminating its buffers entirely. Part III calls for replacing the privatized-family system with a model that I call “buffered-spheres” regulation. This model returns us to the view that supporting the conditions necessary for sound families is a basic responsibility of government, but without outdated gender-role assumptions. Buffered-spheres regulation would ensure that workers have adequate time in the domestic realm, that parents have the time and support to build strong bonds with children, and that all children have sound conditions for human development regardless of their parents’ income.

In Defense of the Fee Simple

Abstract: Prominent economically oriented legal academics are currently arguing that the fee simple, the dominant form of private landownership in the United States, is an inefficient way for society to allocate land. They maintain that the fee simple blocks transfers of land to higher value uses because it provides property owners with a perpetual monopoly. The critics propose that landownership be reformulated to enable private actors to forcibly purchase land from other private owners, similar to the way that governments can expropriate land for public uses using eminent domain. While recognizing the significance of the critique, this Article takes issue with it and defends the fee simple. The Article makes two main points in defense of the fee simple. First, addressing the critique on its own economic terms, the Article argues that the critics have not established that there is a robust economic argument for dispensing with the fee simple. The critique that the fee simple leads to the misallocation of land rests on three empirical premises for which the critics have yet to provide much evidence. The critique also downplays or overlooks important economic benefits of the fee simple. Second, departing from the economic discourse of the critics, the Article argues that the fee simple is valuable because it gives landowners a perpetual right to choose, free from the dictates of others, whether to transfer their land. Thus the fee simple expands the choices of landowners and promotes their independence and autonomy. Eliminating the fee simple would leave landowners vulnerable to the whims of others, and less free and autonomous. Landownership is not only about efficiency, but also about individual freedom.

Beyond the Text: Justice Scalia's Originalism in Practice

Abstract: INTRODUCTION I. EXTRATEXTUAL ASPECTS OF JUSTICE SCALIA'S ORIGINALISM A. Structural Reasoning B. English Legal Tradition C. Post-Ratification History D. New Technology II. UNDERDEVELOPED ASPECTS OF JUSTICE SCALIA'S ORIGINALISM A. Framers' Intent B. The Fourteenth Amendment C. The Burden of Proof D. Precedent CONCLUSION INTRODUCTION This Essay considers the late Justice Antonin Scalia's contributions to constitutional originalism as a practical methodology. Justice Scalia was the leading judicial theorist and advocate of originalism of his era, (1) and his legacy has widely been assessed in those terms. (2) He was also, along with Justice Clarence Thomas, the leading judicial practitioner of originalism of his era. This latter role has received less comprehensive attention. Although there are of course countless articles analyzing and critiquing his originalist methodology in particular cases, or seeking to demonstrate that certain of his opinions are inconsistent with his theoretical commitments, relatively few articles have surveyed the full range of his constitutional opinions to extract the practical components of his originalist methodology. This Essay seeks to contribute to a descriptive account of Justice Scalia's originalist methodology as reflected in his judicial opinions. Its aim is not comprehensive, for that is likely beyond the scope of any single article. Rather, its goal is to identify central and perhaps unexpected components of Scalia's approach as well as to identify areas where his methodology remained undeveloped. To this end, it describes four prominent aspects of his use of originalism to decide cases--some of which may be surprising to originalist scholars. In particular, it discusses ways in which Scalia went beyond the conventional originalist focus on the Constitution's words and phrases and direct evidence of the ways they were used at the time of enactment. It further identifies four areas central to practical applications of originalism where Scalia did not fully develop his approach. I. EXTRATEXTUAL ASPECTS OF JUSTICE SCALIA'S ORIGINALISM In the conventional account, Justice Scalia was a "public meaning" originalist who "identifie[d] the Constitution with the meaning of its words to a reasonable person at the time of enactment." (3) As such, he would be expected to focus primarily on the Constitution's text and historical evidence--such as dictionaries and ordinary usage--of how its words were defined and used at the relevant time. Undoubtedly his opinions did that; they are replete with references to the words of the Constitution and the meanings of those words. (4) But Scalia's opinions went substantially beyond the Constitution's words, sometimes in ways that may be surprising to originalist theorists and practitioners. This Part focuses on four such ways. First, Scalia used structural reasoning and background assumptions to find specific rules in very general text. Second, he made extensive use of the Constitution's English-law background, which he thought formed a crucial key to the Constitution's meaning. Third, he used post-ratification practice--including practice surprisingly remote from the time of enactment--to give meaning to ambiguous clauses. Fourth, he appeared to accept that new constitutional rules could arise with new technologies. Scalia consistently reaffirmed that none of these sources could override unambiguous text, but he was forthright in admitting that constitutional text standing alone was very often ambiguous. (5) A. STRUCTURAL REASONING One surprising element of Justice Scalia's originalism in practice is its embrace of structural reasoning to develop specific rules from implications of general text. Three areas stand out: his decisions on federalism, state sovereign immunity, and standing. They have much in common. All ultimately rest on textual provisions, but the text is too general in itself (even taking into account evidence of common usage) to provide the specific rules Scalia identified. …

Territorial Overlaps in Trademark Law: The Evolving European Model

Abstract: INTRODUCTION I. TRADEMARK TERRITORIALITY II. MECHANISMS TO MODERATE THE FORCE OF TERRITORIALITY III. INCREASED OVERLAP IN MARKS: CLUTTER IV. COMMITMENTS TO THE UNITARY CHARACTER OF THE EUTM: THE COURT OF JUSTICE A. Genuine Use B. Scope of Relief V. APPLICATIONS OF LENO MERKEN AND DHL: RESISTANCE? A. Genuine Use B. Scope of Relief C. Relief in Dilution Cases VI. THE UNITARY PRINCIPLE AND OVERLAPPING RIGHTS: A DEFENSE OF RESISTANCE A. Two Paradoxes 1. Local Rights in a Regional or Global Polity 2. The Interdependence-and-Scope Paradox B. Institutional and Conceptual Design C. Concrete Reform Proposals 1. Judicial Resistance: Developing Interpretation of Leno Merken and DHL 2. Elevating Use-Based Devices 3. Embracing Coexistence of Registered Rights 4. Right to (Nonexclusive) Use Defenses 5. Temporary Nonenforceability D. Hardly a Radical Resistance 1. The "Emmenthal Cheese" Provisions 2. The Expansion Compromise CONCLUSION INTRODUCTION Trademark law has to address "overlapping" rights in a number of contexts. Thus, both the United States Supreme Court and the Court of Justice of the European Union have in recent years tackled the prospect that trademark rights in product shapes might effectively extend the life of patented inventions, (1) or the concern that limits in copyright law might be evaded through assertion of trademark-like claims as regards copyrightable subject matter. (2) In Europe, where design law is a more prominent part of intellectual property disputes, the relationship between trademark law and design law is also heavily contested. (3) And disputes about the overlap of rights under trademark and unfair competition law are also on the horizon on both sides of the Atlantic: the European debate implicates allocation of authority between EU and national law, (4) while in the United States, resolution of the constitutionality of the exclusion from registration of disparaging marks might force the courts to confront in a new context the character of residual use-based rights in a system where such rights have been overlaid by a federal registration scheme. (5) The overlap tackled in this Article--the territorial overlap of competing trademark rights--might be viewed in part through the registration/use prism. Certainly, one of the contexts where territorial disputes are most acute is where the reach of a registration is not closely coextensive with the area of trademark use. But this Article seeks to explore the territorial overlap problem more broadly. Resolving a conflict between two similar rights that overlap (whether territorially or otherwise) is perhaps more central to trademark law than other intellectual property regimes. (6) The fact that an applicant for a trademark would notionally infringe an earlier right is a so-called relative ground for denial of the later registration, and such assessments are a crucial and significant part of trademark law. (7) Indeed, they are becoming even more frequent as the register and the marketplace become choked with a greater number of marks of increasing scope. (8) Thus, this Article's treatment of the territorial overlap of rights--one dimension along which there may be dwindling space for new marks--might also be considered as part of the ongoing debate about so-called trademark "clutter." One cause of the increasing conflict between overlapping trademark rights is the trend in international trademark law to develop (mostly, but not entirely, administrative) mechanisms designed to extend rights more easily and more quickly beyond the borders of a single nation-state. These efforts reflect pressures caused by global trade and digital commerce. (9) If brands are known and sold globally, as the Internet has facilitated with many goods and services, then limiting the reach of trademarks to national borders is seen by many as anachronistic. …

Data Breaches, Identity Theft, and Article III Standing: Will the Supreme Court Resolve the Split in the Circuits?

Abstract: In data breach cases, the plaintiff typically alleges that the defendant used inadequate computer security to protect the plaintiffs personal data. In most, but not all cases, the plaintiff cannot prove that a hacker or thief has actually used or sold the data to the plaintiffs detriment. In most cases, a plaintiff alleges that the defendant's failure to protect his personal data has caused him damages by increasing his risk of suffering actual identity theft in the future and therefore imposed costs on the plaintiff when he reasonably takes measures to prevent future unauthorized third-party data access by purchasing credit monitoring services. In data breach cases, the lower federal courts have split on the question of whether the plaintiffs meet Article III standing requirements for injury and causation. In its 2013 decision Clapper v. Amnesty International USA, the Supreme Court, in a case involving alleged electronic surveillance by the U.S. government's National Security Agency, declared that a plaintiff alleging that it will suffer future injuries from a defendant's allegedly improper conduct must show that such injuries are "certainly impending. " Since the Clapper decision, a majority of the lower federal courts addressing "lost data" or potential identity theft cases in which there is no proof of actual misuse or fraud have held that plaintiffs lack standing to sue the party who failed to protect their data. But a significant minority of lower court decisions have disagreed that the Clapper decision requires denial of standing in data breach cases in which there is no proof of present harm, because a footnote in Clapper acknowledged that the Court had sometimes used a less strict "substantial risk" test when plaintiffs alleged that a defendant's actions increase their risk of future harm. Demonstrating its concern for digital privacy, the Court in Riley v. California recently required police to obtain a Fourth Amendment warrant before examining the digital data on the cellphones of arrested suspects. It would be easy for courts to distinguish the government's seizure of digital data from arrestees in Riley from a third party's hacking of data from a retailer or employer. The Riley decision involves Fourth Amendment warrant issues that are not relevant to private data breach cases. Yet in both cell phone seizure cases and data breach cases, there is the common concern that vast amounts of personal data are often at stake. The new privacy concerns in a digital age should lead the Supreme Court to take a broader view of standing in data breach cases. It is also possible that the Court will follow the Seventh Circuit's Remijas decision to distinguish between cases where there is only a possible risk of theft from those where actual harm has occurred to some plaintiffs. INTRODUCTION Because Article III of the Constitution limits the authority of federal judges to deciding "Cases" and "Controversies," (1) the U.S. Supreme Court has interpreted Article III to impose mandatory standing requirements that require each plaintiff in federal court to demonstrate that he has suffered a concrete injury that is fairly traceable to the actions of the defendant and redressable by a favorable judgment of a federal court. (2) The injury and traceable causation prongs of the Article III standing test have raised problems for plaintiffs in "lost data," "data breach," or potential "identity theft" cases in which plaintiffs allege damages when computer hackers or thieves of physical property such as laptops or hard drives breach a defendant's computer system or network that contains the plaintiffs personal information such as birth dates or Social Security numbers. (3) Data breach cases can involve tens of millions of Americans, as in the Target retail breach, which led to sixty-eight class action lawsuits (4) in twenty-one states and the District of Columbia in less than one month, (5) and, therefore these cases raise important policy concerns. …

Strategies for Discerning the Boundaries of Copyright and Patent Protections

Abstract: INTRODUCTION I. COPYRIGHT AND UTILITY PATENT BOUNDARIES: MUTUALLY EXCLUSIVE OR OVERLAPPING? A. Baker v. Selden and the Birth of the Categorical Exclusivity Approach B. Commentary Endorsing Overlaps in Copyright and Utility Patent Protections C. Some Reflections on Why Copyright and Utility Patent Domains Should Not Overlap II. More Nuanced Approaches to Discerning Copyright/ Utility Patent Boundaries A. The Layering or Segmentation Approach B. Requiring an Election of Protection C. Inseparability or Merger of Expression and Utility D. Some Intellectual Creations Are Not Works of Authorship in Part Because of Their Patentability E. Relevance of Utility Patents to the Viability of Copyright Claim F. Thin Scope of Copyright If Utility Patents Cover Similar Designs CONCLUSION INTRODUCTION Copyright and utility patent laws have historically regulated different types of intellectual creations. (1) Copyright protection has been available for original works of authorship, (2) and utility patent protection for inventive technologies. (3) Overlaps in these two types of intellectual property (IP) rights have largely been avoided through the very different statutory subject matters of each law's protection, (4) as well as through channeling doctrines that courts have developed to manage the boundaries when statutory subject matter differences alone have not sufficed. (5) The copyright and utility patent regimes differ not only in their subject matters, but also in the starkly distinctive mechanisms by which protection arises and the duration for which protections last. (6) The relative ease of acquiring copyright, its long duration, and broad scope, as compared with a utility patent, may tempt creators to claim copyright protection in creations that are utility patent subject matter. (7) Notwithstanding this temptation, it has been relatively rare for creators to assert both copyright and utility patent protections in the same intellectual creations. Yet it has happened on occasion. (8) One such claim arose in Baker v. Selden, whose plaintiff contended that copyright protected the novel bookkeeping system disclosed in the author's book, a system for which Selden had sought, but apparently had not obtained, a utility patent. (9) In Baker, the Supreme Court rejected Selden's claim and seemingly endorsed a categorical exclusivity approach under which intellectual creations should be understood to be eligible for either copyright or utility patent protection, but not for both. (10) The principal authority that has regarded overlapping copyright and utility patent protections to be unproblematic has been the Nimmer copyright treatise. (11) The treatise's treatment of the copyright/utility patent overlap issue is, however, deeply flawed. Those flaws notwithstanding, the Supreme Court has been skeptical of categorical exclusivity arguments in some IP cases. This skepticism suggests the need for more nuanced strategies when attempting to discern the proper boundaries of copyright and utility patent protections than the one-or-the-other-but-not-both approach endorsed in Baker- or the overlaps-are-fine approach endorsed in the Nimmer treatise. When presented with copyright claims as to seemingly ambiguous subject matters, such as toys, puzzles, and computer programs, courts and the Copyright Office have developed several different responses. The most common has been a layering or segmentation approach under which courts treat some aspects of an intellectual creation as protectable by copyright law (e.g., an original drawing of a parachute), while other aspects may be protectable, if at all, by utility patents (e.g., a design of a parachute). (12) But five other strategies for determining copyright and utility patent boundaries are evident in the literature, each of which has sought to preserve separate and distinct domains for copyright and utility patent protections. …

Raising Walls Against Overlapping Rights: Preemption and the Right of Publicity

Abstract: INTRODUCTION The right of publicity overlaps with trademark in its protections against false endorsement, with copyright in its (supposed) justifications in incentivizing performances, and with traditional privacy and defamation torts in protecting personal dignity and control over one's own presentation of the self Yet the right of publicity has been used to extend plaintiffs' control over works and uses that don't violate any of the rights with which it shares a justification This quicksilver nature is what makes the right of publicity so dangerous The law of overlaps in the form of preemption cases might offer some assistance in suggesting a purposive approach Where the state-law right of publicity has a similar purpose to that of copyright, it can conflict with that right and be preempted by federal law Where the right of publicity's purpose is different, however, the relevant purpose or purposes furthered should guide our analysis of the appropriate limits on the right The fact that plaintiffs have renamed their claims should not enable them to extend their rights beyond the underlying justifications for those rights By comparing how preemption and First Amendment law have used purposive approaches to limit the right of publicity, we can see something about how boundary work in intellectual property law (IP) is done--badly, usually, with justifications that aren't consistent or that assume that other regimes work differently than they actually do One improvement would be to embrace categorical approaches, rather than unpredictable case-by-case balancing; both preemption and First Amendment doctrines can lend themselves to this approach Another improvement would be to think of the First Amendment as an intellectual property regime of its own, one with general preemptive power As Justice Brandeis said, the general rule is that ideas are "free as the air to common use," subject to changes worked by positive law, but the First Amendment can prevent positive law from putting ideas or facts off-limits (1) I THE EXPANSION OF THE RIGHT OF PUBLICITY The stunning expansion of the right of publicity has been extensively covered elsewhere (2) I will offer only two appalling recent examples: in 2015, a district court allowed a right of publicity claim against a racing video game to proceed (3) The theory of the case was that the game offered a visual representation of an actual racing track, including an image of a banner displaying the trademark of Virag, an Italian flooring company (4) Virag is also the last name of Mirco Virag, one of Virag's owners, and the court accepted the allegation that the Virag trademark was a "personification" of Mirco Virag (5) As a result, although the First Amendment precluded a claim against the video game based on allegations of trademark infringement, (6) a right of publicity claim survived based on the game's alleged use of Mirco Virag's identity-based on the same banner that triggered the First Amendment-barred confusion claim (7) Even in such cases of flat-out conflict between trademark's and the right of publicity's respective First Amendment limits, courts have been unwilling to limit the right of publicity (8) Similarly, a California trial court recently found that a plaintiff had shown a probability of success on the merits of his claims that Facebook's practice of putting advertisements on webpages, including Facebook pages set up to criticize the plaintiff, made a commercial use of the plaintiff's name and likeness and thus violated his statutory right of publicity and constituted common-law misappropriation under California law (9) Truth and lack of negativity in the portrayal aren't defenses to a right of publicity claim, so the right is far more expansive than plaintiff-friendly defamation rules the Supreme Court invalidated long ago Channeling the plaintiff's claim into the proper cause of action--preventing him from evading the well-justified limits on defamation law (10)--is the obvious solution to the problem; instead, the court approved an interpretation of the right of publicity that 011 its face allows President Donald Trump to control every mention of his name in ad-supported or for-profit media, which is to say almost all media outlets …

The Exceptional Role of Courts in the Constitutional Order

Abstract: We examine exceptional cases in which judges are called upon to pass judgment on the constitution itself. There are three groups of cases. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. We claim that "constitutional decisionism" is inevitable in all three groups of cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.

An Avoidable Conundrum: How American Indian Legislation Unnecessarily Forces Tribal Governments to Choose between Cultural Preservation and Women's Vindication

Abstract: * Candidate for Juris Doctor, Notre Dame Law School, 2018; Bachelor of Arts in Political Science, Strategic Communications, and History, University of Denver, 2014. I would like to thank Professor Christine Venter for her invaluable guidance and feedback, as well as Patrick Thomas for his relentless words of encouragement. 1 For the purposes of this Article, “Indian” means any person who is a member of an Indian tribe, as defined in 25 U.S.C. § 1603(13) (2012). This definition includes those who: (A), irrespective of whether he or she lives on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member, or (B) is an Eskimo or Aleut or other Alaska Native, or (C) is considered by the Secretary of the Interior to be an Indian for any purpose, or (D) is determined to be an Indian under regulations promulgated by the Secretary. 25 U.S.C. § 1603(13) (footnote omitted). 2 This Note does not address the societal and cultural hurdles American Indians face such as: the geographic isolation of reservations, the lack of access to adequate medical care (including rape kits), and the overall prevalence of alcoholism, poverty, and depression in Indian country. For a discussion on these issues, see RONET BACHMAN ET AL., VIO-

Penn Central Take Two

Abstract: Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest--a transferable development right (TDR)--that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that, saved Grand Central were themselves taken by the government, which allegedly wiped out their value by permissively upzoning neighboring property where they could have been used. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property--such as TDRs and pollution credits, for example--is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Article ultimately argues that the creation of regulatory property should not prevent policy changes far into the future. INTRODUCTION Without any question, the most important case interpreting the Fifth Amendment's Takings Clause is Perm Central Transportation Co. v. New York City. (1) It involved the historic preservation of Grand Central Terminal, the majestic railroad terminal in the heart of Manhattan. With its landmarking, the City of New York prevented the terminal's owner--the Penn Central Authority--from developing a massive high-rise atop the ornate Beaux-Arts building. When the Penn Central Authority sued, claiming that the landmarking was a taking of its valuable development rights, the United States Supreme Court articulated the eponymous ad hoc three-factor balancing test and held that the landmarking was not a taking. (2) In reaching its conclusion, the Court focused partly on the fact that the City had enacted a regime of transferable development rights that allowed the Penn Central Authority to transfer at least some of the building's development potential to its immediate neighbors. (3) Now, extraordinarily, 1.2 million square feet of the very same TDRs from that original landmarking--unused for over forty years--are back in the news as the subject of a new round of takings litigation. (4) New York City recently relaxed the zoning restrictions in the area around Grand Central, and in so doing allegedly wiped out much--if not all of--the value of the remaining unused TDRs. (5) The owner of the TDRs sued, arguing that the City's favorable treatment of neighboring property was a taking of the original Penn Central TDRs. (6) The case has just been settled on terms that, while confidential, were characterized as de minimis by knowledgeable insiders. (7) But the poetic injustice of the situation seems striking. The TDRs that saved the original landmarking of Grand Central were themselves allegedly taken through the upzoning of neighboring property. Even though the case has been resolved, the fact of the litigation raises a number of important substantive and conceptual issues that go to the heart of the Takings Clause and the nature of regulatory property. If the mere existence of TDRs transforms favorable upzonings into impermissible takings, then a TDR program threatens to lock in land use regulations against subsequent regulator)' change. That, in turn, is problematically entrenching and binds the hands of future governments. (8) However, if the value of TDRs can be so easily undermined, the viability of TDR programs may be in jeopardy. This Article therefore charts a careful middle path, one that balances the value of stability in the expectations of rights holders against the need for policy flexibility in the future. In particular, it argues that promises of regulatory stability should not be implied but should be subject to a clear statement rule, and that even in the presence of a clear statement, their strength should decrease over time. …

Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument

Abstract: Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his tenure, in particular his preference for rules versus standards as a method of cabining judicial discretion and his devotion to constitutional originalism. The essay concludes first that Justice Scalia embraced a broad view of Congress's power to delegate because he (again, consistently with the Court's longtime understanding) believed that the line-drawing required for courts to police delegations was ultimately a matter of discretionary judgment that judges are unsuited to make. With respect to his nondelegation doctrine jurisprudence's consistency with originalism, it is a gap in his jurisprudence that he never took on that question. That gap is best understood, the essay suggests, by his attraction to the deferential nature of the Court's longstanding precedents and the doctrine of stare decisis.

Expecting the Unexpected

Abstract: Introduction Patent law rewards invention. Invention in turn means not merely that something is new, but that it is nonobvious--something that ordinary scientists in the field wouldn't have figured out. We have a number of legal doctrines designed to decide whether an invention would be obvious to those in the field. One of the most important of those doctrines is the doctrine of "unexpected results." If the patentee's invention produced unexpected results, the law says, that is pretty good evidence that it wasn't obvious. A second important doctrine, established in the law only in 2007, is that if it is obvious to try to make something, and if those who might try would expect to succeed, making that thing is not patentable. After all, if an ordinary scientist would think to try a particular approach and would expect to succeed, actually doing so isn't really inventive. It's just the ordinary work we expect of scientists. These two doctrines can conflict. What if it is obvious to try something, but actually trying it leads to unexpected results? This actually happens with some frequency, particularly in the chemical and pharmaceutical industries, where researchers are motivated to try various standard modifications of known chemicals but where the unpredictability of the art means that they can expect to be surprised by what they learn from time to time. Perhaps surprisingly, courts have not yet decided how to resolve this conflict, with a number of cases in the last several years preferring one doctrine or the other without directly acknowledging the conflict. I argue that when these two legal doctrines conflict, the doctrine of unexpected results must give way. Obviousness is based on the idea that we should not give a patent if ordinary scientists could have gotten to the result without the encouragement of that patent. (1) If researchers of ordinary skill were already motivated to try a new variation, and correctly expected that they would succeed, actually trying the new variation is normal science lacking the extra skill or insight required for invention. And if scientists would have created the new variation in the ordinary course of their duties, they would of necessity have stumbled upon the unexpected results. Normal science, not the incentive of a patent, led them to that outcome, so the invention is not patentable. This result may alarm patent owners in the pharmaceutical industries, who have been obtaining patents for this sort of normal experimentation for years. But I think it is required by the Supreme Court's decision in KSR International Co. v. Tele flex Inc., which held that an invention was not patentable if it was obvious to try. (2) While pharmaceutical patent owners may lament the loss of these patents, the rest of the world may not. Patents likely to be affected by the obvious-to-try rule tend to be follow-on patents used to try to extend the life of expired patents on new chemical entities, not breakthrough drugs that require strong protection. And pharmaceutical patent owners may have other avenues to obtain protection they legitimately need. Thinking about the tension between unexpected results and obviousness to try also offers a window on why we have an obviousness doctrine at all. KSR's focus on obviousness to try may represent a fundamental shift in thinking about obviousness, from a focus on whether the result was expected to a focus on whether the process of getting to that result was conventional. I. THE LAW OF OBVIOUSNESS A. The Primary Analysis We grant patents only to inventions that are novel and nonobvious--ones that an ordinary scientist in the field would not have come up with. Obviousness is the "ultimate condition" of patentability--the single most significant doctrine dividing those ideas worth granting a patent on from runof-the-mill work that does not deserve a patent. (3) As the Supreme Court made clear in KSR, an ordinarily skilled researcher is "not an automaton," but a scientist who is a problem-solver and will be motivated to improve things in the ordinary course of scientific work. …

Trademarks and Digital Goods

Abstract: BMW recently sued online virtual modeling company TurboSquid for selling digital models of BMW vehicles. (1) TurboSquid allows artists to upload to its web site and offer for sale a wide range of digital models, (2) and there are currently dozens of 3D models of cars available on the site, many from recognizable brands: Purchasers of the digital models typically use them as inputs for video games, news reporting, commercials, and movies. (3) Some of the models available for sale on TurboSquid's site can be 3D printed by the purchaser. (4) According to BMW, TurboSquid's "marketing of 3-D virtual models" of BMW vehicles for use in video games infringed BMW's trademarks and trade dress, in addition to its design patents. (5) With respect to its trademark claims, BMW alleged that the sale of digital models of BMW cars, complete with BMW logos, was likely to confuse consumers about the source of those digital models, or about whether BMW had licensed TurboSquid to sell models of its vehicles. BMW's case is the latest in a growing number of trademark cases dealing with uses in the digital environment. Some of those cases raise issues with which trademark law has long wrestled--cases like E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., in which the owners of the Play Pen Gentlemen's Club claimed the defendant's digital depiction of the "Pig Pen" strip club in the Grand Theft Auto video game infringed its rights in its Play Pen mark. (6) E.S.S. happened to involve a digital work (a video game), but it raised familiar questions about the circumstances in which use of a trademark within an expressive work can give rise to liability. (7) Other cases implicate the trademark/copyright boundary, raising concerns about trademark law's overlap, or interference with copyright--cases like Marvel Enterprises, Inc. v. NCSoft Corp., in which Marvel claimed that the defendant's inclusion in its video game of a superhero character called "Statesman" infringed its copyright and trademark rights in Captain America. (8) Many of these latter cases implicate the Supreme Court's Dastar Corp. v. Twentieth Century Fox Film Corp. decision, which held that only confusion about the origin of tangible goods (and not about the origin of intangible content) is relevant for purposes of Lanham Act claims. (9) But BMW's case against TurboSquid has a somewhat different flavor because that claim related not to the inclusion of digital BMWs in a digital work, but to the sales of the files themselves. (10) And there are reasons to think these types of claims may be more common in the future, as a variety of goods that consumers once would have purchased in physical form are increasingly beamed to computers and phones as digital files. (11) Media products are the most obvious examples here. Music once purchased on vinyl, eight-tracks, audio cassettes, or CDs is now downloaded or streamed from the cloud. (12) Movies once rented or purchased on Betamax/VHS tapes or DVDs are likewise downloaded or streamed. (13) And software once purchased on floppy disks (5.25 inch, then 3.5 inch) or CDs is now downloaded directly or, in some cases, provided as "software as a service," in which applications are stored remotely in the cloud and dispersed users utilize the program through interfaces on their individual computers. (14) But in a world in which 3D printing technology is becoming mainstream, this phenomenon will not be limited to media products. Indeed, 3D printing technology makes possible the digitization of nearly any product that can be conceived. (15) No longer must consumers purchase physical items like toys, tools, or even handbags. Rather, they can create or obtain digital files containing 3D printing instructions and print the items in their homes or anywhere they have access to a 3D printer. (16) From trademark law's perspective, the significant point is that 3D printing technology radically separates the design and production processes. …

Expired Patents, Trade Secrets, and Stymied Competition

Abstract: Patents and trade secrecy have long been considered substitute incentives for innovation. When inventors create a new invention, they traditionally must choose between the two. And if inventors choose to patent their invention, society provides strong legal protection in exchange for disclosure, with the understanding that the protection has a limit: it expires 20 years from the date of filing. At that time, the invention is opened to the public and exposed to competition. This story is incomplete. Patent disclosure is weak and focuses on one technical piece of an invention — but that piece is often only a part of the market-relevant innovation. Patent-holding innovators use various tactics to distort the patent bargain and prolong effective monopolies beyond the patent’s expiration date. These tactics include using patented inventions to generate secret information, relying on the timing difference between patent filing and product marketing to make disclosure nearly irrelevant, and tying secret components to patented frameworks. While these phenomena have been noted before, this paper joins them together as examples of ways that innovators avoid the competition-promoting function of patent expiration, ultimately limiting the benefit the public receives from patented inventions. It also suggests that the most problematic cases likely involve markets where additional factors, such as regulation or other market irregularities, require that goods be interchangeable. Finally, it proposes the concept of economic enablement: patentees may have a responsibility to enable not just the bare technical invention disclosed in a patent, but rather the minimum information necessary to commercially exploit the patented invention. Against the background of the newly enacted federal Defend Trade Secrets Act, courts and scholars alike should examine the boundaries between trade secrets and patents to ensure that the overlap does not distort the policy goal of incentivizing and promoting both innovation and competition.

Originalism and Stare Decisis

Abstract: INTRODUCTION Justice Scalia was the public face of modern originalism. Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution's meaning as susceptible to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable. The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court's existing cases. But what happens when precedent conflicts with the original meaning of the text? If Justice Scalia is correct that the original public meaning is authoritative, why is the Court justified in departing from it in the name of a judicial policy like stare decisis? The logic of originalism might lead to some unpalatable results. For example, if the original meaning of the Constitution's Gold Clauses prohibits the use of paper money, is an originalist bound to plunge the economy into ruin? Some constitutional theorists treat precedent as capable of supplementing and even supplanting the text's historical meaning; for them, choosing to follow precedent that diverges from the original meaning is relatively unproblematic. Originalists, in contrast, have difficulty identifying a principled justification for following such precedent, even when the consequences of overruling it would be extraordinarily disruptive. Faced with this problem, Justice Scalia famously described himself as a "faint-hearted originalist" who would abandon the historical meaning when following it was intolerable. (1) He claimed that " stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.'" (2) That concession left him vulnerable to criticism from both his intellectual opponents and his allies. His opponents argued that Justice Scalia's willingness to make a pragmatic exception revealed that originalism is unprincipled in theory and unworkable in practice. Some of his allies contended that a principled originalist should not be afraid to depart from even well-settled precedent. The tension between stare decisis and originalism gave stare decisis a newly significant role in debates about constitutional theory. To be sure, judges and scholars had long grappled with the pragmatic considerations that inform the choice between keeping law settled and getting it right. But for an originalist, the decision whether to follow erroneous precedent can be more than a matter of weighing the costs and benefits of change. At least in cases involving the interpretation of constitutional text, originalists arguably face a choice between following and departing from the law embodied in that text. While the debate about stare decisis is old, modern originalism introduced a new issue: the possibility that following precedent might sometimes be unlawful. This issue was unexplored before Justice Scalia helped propel originalism to prominence. Since then, the question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia's approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his "fainthearted" quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication. I. THE PROBLEM OF PRECEDENT Before addressing the tension between originalism and stare decisis, it is important to emphasize that precedent itself is not only consistent with, but critical to, originalism. …

Naïve Energy Markets

Abstract: Centrifugal forces dominate the twenty-first century American policy process. Ideologically, the two major political parties are more homogenous and further apart than at any time since the advent of the modern regulatory state. (1) Political scientists ascribe polarization in Congress to any number of factors, most of which fall within either of two categories: one focusing on the increasing ideological homogeneity in congressional districts, (2) and a second focusing on various kinds of institutional factors that affect how parties manage congressional business. (3) Legal scholars, for their part, have begun to explore the implications of this ideological split for our understandings of American federalism, (4) modern American administrative law, (5) and more. (6) At the center of these ideological differences lies the fundamental dilemma of the regulatory state: namely, the question of when it is advisable for the state to intervene in the market. (7) Recent debates over the Affordable Care Act, (8) financial regulation, (9) antitrust regulation, (10) and net neutrality, (11) for example, divide the parties along this fault line. This "market versus regulation" divide has riven the American polity since Ronald Reagan first began to challenge the New Deal consensus (12) and the cross-party acceptance of the modern regulatory state. (13) Nowhere is that divide more prominent today than within the field of energy law, a body of regulation that encompasses two basic challenges: (1) the problem of ensuring well-functioning energy markets, and fair energy prices, (14) and (2) the problem of managing the many and varied externalities associated with the production and delivery of energy. American policy has traditionally addressed the former objective through public utility and antitrust law, and the latter objective through environmental health and safety regulation. Both challenges pose the question of how best to allocate the costs and benefits of energy services: that is, when to rely on the market to allocate those costs and benefits, and when to use law to change that allocation. (15) Congressional gridlock over the last twenty years has shifted the battle over these questions from Congress to states, regulatory agencies, the courts, and quasi-governmental and private governance institutions. (16) The push to deregulate price and competition in energy markets has proven particularly successful at the federal level and in some states; the push to deregulate the externalities of energy production, much less so. (17) Each of these competing visions of our energy future--one seeking ever-freer energy markets, and another seeking ever-cleaner energy markets--represents an ideologically coherent ideal that stands in contrast to a more complex and messy reality. The trend toward competition, market pricing, and less regulation in the energy industry embraces the logic and elegance of markets. It means that participants are exposed to more price risk than in the past; (18) and as William Boyd has illustrated with respect to public utilities, it represents a narrowing of both the notion of the public interest and the government's role in protecting that interest. (19) The vision of greener energy markets, on the other hand, is mostly a top-down vision pushed along by policy, mostly at the state level. California and New York, for example, are among those states using policy to drive reductions in the use of fossil fuels in their energy sectors, while other states are more or less content with the environmental status quo. (20) As political polarization worsens, energy policy seems to be approaching a kind of stalemate, as federal agencies and states try to address new energy policy problems without the help (and sometimes over the objections) of a gridlocked Congress. (21) Thus, in the last few decades, when Republicans have controlled the executive branch, states and regional entities have pursued their own clean energy and pollution control policies; (22) when Democrats have controlled the executive branch, federal agencies pursue those same policies, often with active resistance from Republican states. …

Capital Punishment of Unintentional Felony Murder

Abstract: Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court's decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deferrable offenders, and this in turn requires an assessment of culpability. We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of felony murder. INTRODUCTION That a defendant could be executed for causing death inadvertently might seem absurd. Nevertheless, the great majority of American courts to have considered the question have concluded that the Eighth Amendment of the U.S. Constitution permits such executions. In so doing, they have interpreted Supreme Court doctrine to allow capital punishment of any person who causes death during the commission of a felony, regardless of that person's mental state with respect to the resultant death. Under this reading of precedent, the following defendants are eligible for the death penalty: the driver of a getaway car who kills a jaywalker, the burglar who starles an elderly homeowner and causes a fatal heart attack, and the robber who unknowingly punches a hemophiliac. Such counterintuitive results become conceivable when eligibility for the death penalty is untethered from the defendant's culpability. This disconnect results from an overly mechanical interpretation of the Supreme Court's two key cases applying the Eighth Amendment to the felony murder context: Enmund v. Florida (1) and Tison v. Arizona. (2) Although these cases have been read to permit execution of nonculpable killers, the holdings of both decisions impose a high level of culpability for execution of accomplices in felony murder, on the ground that death should be reserved for the most culpable offenders. In overturning the death sentence of an accomplice in a fatal felony, the Enmund majority stated that a participant in a fatal felony is ineligible for capital punishment if he "does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." (3) In upholding the death sentences of two accomplices in a fatal felony, the Tison majority permitted capital punishment of felons "whose participation is major and whose mental state is one of reckless indifference to the value of human life." (4) Thus, subsequent readings of Enmund and Tison that permit the execution of actual killers regardless of culpability are largely based on what they did not say about a question that was not before them. To be sure, the Enmund majority did not say that those who "kill" are eligible only if they intend death, but neither did it say they are eligible regardless of their mental state. The Tison majority concluded that Enmund "held" that capital punishment could be imposed on "the felony murderer who actually killed," (5) but only "when the circumstances warranted." (6) Because both cases concerned accomplices of intentional killers, neither Court specified whether those who "killed" included all who caused death, by any means, and with any mental state. Yet most lower courts have assumed that anyone causing death in a predicate felony is death-eligible, regardless of any culpability. Omitting consideration of a culpable mental state is at odds with a central background principle of Eighth Amendment law: that we may only execute people to advance deterrence and retribution and that neither can be furthered if the person does not act with culpability. …

Boyle as Constitutional Preemption

Abstract: During his remarkable tenure on the Supreme Court, Justice Antonin Scalia was widely acknowledged to be the Court’s leading proponent of textualism and originalism1—methodological commitments that instruct judges to interpret legal texts according to what a reasonably skilled user of language would have understood the text to mean at the time of its adoption. These commitments generally led Justice Scalia to disfavor doctrines—such as federal common law—that license judges to exercise broad discretion unmoored from federal constitutional or statutory texts.2 Such doctrines are in tension with separation of powers and federalism because they enable judges to encroach upon the constitutional domain of the political branches and the states. Justice Scalia’s opinion for the Court in Boyle v. United Technologies Corp.3 arguably departed from his usual preferences by recognizing a government contractor defense as a matter of federal common law.4 Numerous critics have pointed out the apparent inconsistency between Boyle and Justice Scalia’s broader methodological commitments. Whatever one thinks of the Court’s opinion, however, the actual decision in Boyle finds substantial support in the text and structure of the Constitution. When the executive branch contracts to procure specialized military equipment to meet its needs, it does so pursuant to constitutional and statutory authorization. It is these underlying constitutional and statutory provisions—not fed-

Subconstitution Al Checks

Abstract: INTRODUCTION Constitutional checks are integral to the American constitutional system. (1) State and federal constitutions explicitly protect criminal defendants with individual rights that act as "checks" against government power. (2) The federal Constitution and most state constitutions provide individual constitutional rights, including the right to counsel, (3) the right to trial by jury, (4) the right to a grand jury, (5) the right against self-incrimination, (6) the right against excess bail, (7) the right against cruel and unusual punishment, (8) and due process protections. (9) These constitutions also provide structural checks from each branch. From the executive branch, police and prosecutors enforce the law with some autonomy but are subject to appointment, sometimes election by the public, and to the limits and priorities of the chief enforcer, the president or state governor. (10) The legislature enacts criminal statutes that clearly indicate when a person has broken the law, and is also subject to elections and legislation priorities, partially based on an assessment of the laws it has passed. (11) Finally, the judicial branch interprets the law fairly and ensures that executive officers respect individual constitutional rights and that legislatures enact clear statutes. (12) All of these constitutional checks, if functioning correctly, provide a structural balance in state and federal criminal justice. Unfortunately, these constitutional checks are not functioning, most markedly in the criminal justice system. First, checks and balances are not functioning in constitutional criminal procedure because often the branches' interests are aligned. (13) For instance, legislatures especially in the last fifty years have not acted as a check to executive power but instead have colluded to enlarge the executive branch and pass harsher laws to punish criminal defendants. (14) In general, the branches work together exclusively to protect against crime, as opposed to balancing community safety while upholding the individual rights of the accused. Second, most of the individual constitutional rights to be enforced by the courts are trial rights, and trials have been replaced by a plea system that lacks a judicial enforcement valve for these rights. Third, public elections of prosecutors are pro forma and lack substantive checks on executive power, and legislative elections provide little accountability for criminal legislation passed. And as a result, structural checks are lacking in criminal justice. The lack of constitutional checks in criminal justice is considerable. Without limits on the executive power to enforce the law and with an increased efficiency in plea bargaining, arrest rates, conviction rates, and detention rates (for both felonies and misdemeanors) have skyrocketed in federal and state systems. (15) This has been aided by the legislature's increasing the executive's ability to punish with harsher laws and by the lack of public knowledge about the effects of these laws on incarceration rates. These increases have led to mass incarceration, with the highest imprisonment rates America has ever experienced, and an "epidemic" of prosecutorial misconduct. (16) Indeed, the result of a lack of structural constitutional checks has been alarming. In other areas, where constitutional checks are missing or failing, what I call "subconstitutional" checks have been formed by the courts or legislature, including 42 U.S.C. [section] 1983 and the Administrative Procedure Act (APA) as two key examples. Subconstitutional checks are stopgaps formed to effectuate the rights in the Constitution when the system is stalled in dysfunction, when one branch has subjugated the others, or when one branch has colluded with another. Subconstitutional checks are not derived explicitly from constitutional language but from an interest in protecting explicit constitutional structure and to give substance to specifically enumerated constitutional rights. …

Did Justice Scalia Have a Theory of Interpretation

Abstract: II seems beyond bizarre to ask whether' justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what justice Scalia scud, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation--the ascertainment of textual meaning--and adjudication--the determination of real- world cases-is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however', to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication. INTRODUCTION Did Justice Scalia have a theory of textual interpretation for either statutes or the United States Constitution? The question seems beyond bizarre. Justice Scalia cowrote two of the leading books in the past few generations on statutory and constitutional interpretation. (1) Several of his articles on constitutional interpretation are modern classics. (2) He is widely seen as having moved the Supreme Court significantly towards his favored position on statutory interpretation; Justice Kagan, for example, said in 2015 that "Justice Scalia has taught everybody how to do statutory interpretation differently." (3) Advocates of originalism as a method of constitutional interpretation universally see him as quite possibly the most important figure in the development of that methodology. (4) Justice Scalia certainly thought that he had a theory of interpretation; the word "interpretation," after all, figures prominently in the titles of both of his books. (5) Indeed, in his collaborative work with Bryan Garner, he was deeply critical of J. Harvie Wilkinson's celebration of nontheory, (6) and he labeled nontextualist modes of analysis as "anything but fully developed theories of interpretation," (7) presumably in contrast to his own fully developed interpretative theory. Whether one calls his method of interpretation textualism or originalism (along with whatever qualifying adjectives one attaches to either of those terms), and whether one thinks that method is sound or unsound, surely no one doubts that Justice Scalia, perhaps more clearly than any other modern--or, for that matter, nonmodern--jurist, had an articulated theory of statutory and constitutional interpretation. If Justice Scalia did not have a theory of interpretation, then what exactly were he and his critics talking about for the past three decades? My goal here is to make the opening question seem just a bit less bizarre than it may appear at first glance. It is actually a nontrivial question whether Justice Scalia had a theory of textual interpretation, for either statutory or constitutional texts. To answer that nontrivial question, one must focus on two more fundamental questions that all too often lurk unasked under the radar: (1) what elements must a theory of textual interpretation possess in order to be an actual theory of textual interpretation, and (2) what is the relationship, if any, between theories of textual interpretation and theories of legal adjudication? …