Showing papers in "Washington Law Review in 2006"

How Are Patent Cases Resolved?: An Empirical Examination of the Adjudication and Settlement of Patent Disputes

Abstract: In this article, we attempt to answer some fundamental questions regarding the role played by the courts in the patent system by examining a set of patent cases in great detail. To this end, we have constructed a new database based on court docket reports for all patent cases filed in 1995 and 1997 and tracked the evolution of these cases (about 3700 cases) through to settlement or adjudication on the merits. The focus of this effort is on keeping track of a number of variables to understand the precise disposition of each case. We have also tracked different characteristics in order to estimate patent litigation costs in each case. For instance, we note the amount of time taken by each case through to final disposition. In addition, we have devised a new proxy for measuring costs - the number of documents filed by all the parties in each case - which we believe is more closely correlated with actual litigation costs than the traditional measures of time expended and the stage of termination in each case. Our results show that many more patent cases are adjudicated on the merits (either at the pre-trial stage through a grant of summary judgment or at trial) than is commonly thought. This work is one of the few scholarly efforts in empirical litigation scholarship that can actually estimate this amount because most other papers rely exclusively on the imprecise categorization of the Administrative Office of U.S. Courts to determine case outcomes. Our results demonstrate that in addition to the small number of patent cases going to trial (about 5%), another significant percentage of cases (about 8-9%) are resolved on the merits through summary judgment. Consequently, summary judgments are important in patent cases for determining patent validity and infringement, and the summary judgments related to patent validity occur earlier in the litigation compared to summary judgments related to patent infringement. This result is somewhat encouraging given the important role played by the courts in revoking patent rights improvidently granted at the outset by the PTO. Nevertheless, despite the fact that such rulings occur early in the proceedings compared to patent trials, we should still be concerned about the huge transaction costs associated with patent litigation because summary judgments in general, and summary judgment based on invalidity in particular, are expensive compared to summary judgments granted on other grounds. In addition, there is a significant difference in duration and number of documents filed in cases resolved through summary judgment for the 1997 filed cases compared to the 1995 filed cases. This is consistent with the changes brought about by the Markman decision that invigorated claim construction as a threshold legal issue in patent litigation. The increased importance placed on first construing the claims before addressing infringement or invalidity after Markman necessitates that significant resources be allotted to the step of claim construction before (or concurrent with) filing motions for summary judgment. Overall, our results show that transaction costs associated with patent litigation loom large, and rulings on the merits by the courts concerning patent validity, patent infringement, and remedies for infringement (i.e., injunctive relief or damages) are rare, expensive, and not pursued to completion by most litigants. Instead, most patent cases settle fairly quickly (about 12-15 months) after the filing of the complaint, thereby reducing the actual cost of patent litigation considerably. This work has significant implications for all civil litigation in general, and for recent efforts to reform the patent system by either improving patent quality through new administrative procedures at the PTO or for substantive patent law reform. Our results strongly suggest that patent litigation is largely a settlement mechanism, and hence, any proposed change in the patent laws should be analyzed in terms of the incentives generated for prompt settlement of patent disputes. In addition, entities and interest groups seeking cheaper and/or a greater number of patent rulings concerning validity and infringement will be wise to look elsewhere, perhaps at other patent institutions such as the PTO or at other alternative dispute resolution (ADR) mechanisms that complement the courts.

The Myth of the Student-Athlete: The College Athlete as Employee

Abstract: Grant-in-aid athletes in revenue-generating sports at Division I National Collegiate Athletic Association (NCAA) institutions are not "student-athletes" as the NCAA asserts, but are, instead, "employees" under the National Labor Relations Act (NLRA). To be an employee under that Act, these athletes must meet both the common law test and a statutory test applicable to university students. In applying the common law test to athletes, we describe their daily lives through interviews with current and former Division I grant-inaid athletes. These interviews demonstrate that their daily burdens and obligations not only meet the legal standard of employee, but far exceed the burdens and obligations of most university employees. In addressing the statutory definition of the term employee, we demonstrate that the relationship between these athletes and their universities is not primarily academic, but is, instead, undeniably commercial. As employees under the NLRA, these athletes are entitled "to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Consequently, they will be able to acquire bargaining power through collective association and to negotiate their terms and conditions of employment, including wages not arbitrarily limited to the level of athletic scholarships. The Labour of his Body, and the Work of his Hands . . . are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men.1 Every time I try and call it a business you say it's a game and every time I say it should be a game you call it a business.2 INTRODUCTION The National Collegiate Athletic Association (NCAA), a voluntary association of approximately 1,200 colleges and universities,3 has among its stated purposes promoting amateur athletics.4 Towards that end, the first stated purpose in its Division I Manual is "[t]o initiate . . . and improve intercollegiate athletics programs for student-athletes and to promote . . . athletics participation as a recreational pursuit."5 Despite the prominence of this assertion, the NCAA has failed to realize this ideal for athletes in the most commercially lucrative college sports. For fifty years, the NCAA has used the term "student-athlete" to describe the young men and women who are athletes at its member schools.6 Of late, its insistence that college athletes be so characterized has reached a fevered pitch. One need only consider the recent NCAA men's basketball tournaments-the self-styled "March Madness"-when for several years the NCAA's constant and insistent media message has been that these young men and women are learning important life lessons by engaging in intercollegiate athletics and are, therefore, student-athletes, not mere athletes.7 The shrill urgency of the NCAA's "student-athlete" media campaign evokes Queen Gertrude's damning observation to Hamlet: "The lady doth protest too much, methinks."8 Why, a half century after adopting this term, should the NCAA unceasingly intone to millions of viewers that these young men and women are "student-athletes"? The NCAA's purpose in this message is to shore up a crumbling facade, a myth in America, that these young athletes in NCAA-member sports programs are properly characterized only as "student-athletes." This characterization-that athletes at NCAA-member schools are student-athletes-is essential to the NCAA because it obscures the legal reality that some of these athletes, in fact, are also employees.9 By creating and fostering the myth that football and men's basketball players at Division I universities are something other than employees, the NCAA and its member institutions obtain the astonishing pecuniary gain and related benefits of the athletes' talents, time, and energy-that is, their labor-while severely curtailing the costs associated with such labor. …

Recordings, transcripts, and translations as evidence

Abstract: Secretly recorded conversations often play a vital role in criminal trials. However, circumstances such as background noise, accidents, regional or national idioms, jargon, or code may make it difficult for a jury to hear or understand what was said-even if all participants were speaking English. Thus, a recording's value as evidence will often depend on whether an accurate transcript may be distributed to the jury. This Article discusses several legal issues, including: Who should prepare a transcript? What should it contain? How should its accuracy be determined, and by whom? Should the transcript be considered evidence, or only an "aid to understanding" the recording? Should expert testimony be admitted to interpret jargon and codes? When the conversation was in another language, additional issues arise: Who should translate the conversation into English? What methodology should the translator use? How should a court determine the accuracy of the translation? How should the conversation be presented to the jury? How can the adverse party challenge the accuracy of the translation before and during the trial? By blending existing case law, general evidentiary principles, common sense and his own experience as a prosecutor, the author offers answers to each of these questions. INTRODUCTION Surreptitiously recorded conversations have long played a prominent role in American trials.1 Few, if any, forms of evidence are likely to be as probative-or as devastating. We see this most often in criminal cases: rather than rely on the testimony of witnesses who may be vulnerable to various forms of impeachment, a prosecutor simply allows a defendant's words to speak for themselves.2 It is quite difficult for a defense attorney to "impeach" a recording of criminals planning or reminiscing about their crimes. The impact of such evidence can be equally dramatic in civil litigation.3 Assuming the conversation was recorded lawfully,4 the use of the recording as evidence poses no significant issues if the participants are clearly identified and the recording is plainly audible and intelligible to judge and jury.5 Often, however, these ideal conditions do not exist. As a practical matter, therefore, the evidentiary value of a recorded conversation will often depend on whether the offering party can give the jury a transcript. A variety of circumstances may render the recording difficult or impossible to understand on an initial listening. Identity may be a contested issue. Background noise may make it difficult to hear what was said. Several people may be speaking simultaneously. One or more participants in the conversation may speak with a pronounced accent. The conversants' use of slang, jargon, or code may increase the difficulties in making out what was said, let alone what the conversants meant. The challenges surrounding recorded conversations are further compounded when some or all of the conversants speak in a language other than English. In that case, even if the recording is free of all of the problems just discussed, it has no evidentiary value unless an English translation is provided to the jury. It is perhaps a common attitude that translating a conversation from one language to another is a fairly mechanical process: pour the foreign language into a human "machine" called the "interpreter" or the "translator," and out comes the equivalent in English. In reality, the process is far more subjective than objective, and much more an art than a science, let alone a mechanical process.6 Part I of this Article examines the issues that arise when the party offering a recording in evidence also seeks to have a transcript of that recording distributed to the jury. I argue that the traditional view-that the transcript is not evidence but merely an "aid" to the jury to help it "understand" the recording7-is unrealistic and fails to recognize or adequately address the challenges of presenting a recording as evidence. …

Strengthening Auditor Independence: Reestablishing Audits as Control and Premium Signaling Mechanisms

Abstract: As recent scandals have demonstrated, ensuring the independence of auditors from the publicly traded clients whose books they inspect is one of the most vexing problems in the financial world today Arguably, the imposition of a mandatory audit system through the 1930s federal securities laws created the modern problem of auditor independence The core issue is that the statutory audit is simply a commodified cost of doing business for issuers that imposes an impossible obligation to serve an unspecified "investing public" on the auditors Yet, this investing public neither hires, fires, nor controls the auditors Instead, the audit relationship is managed by the board of the company being audited The resultant conflict of interest has proven to be insurmountable even after multiple reform efforts The conceptual solution is to both "decommodify" the audit and place control of it squarely in the hands of shareholders To achieve this, the author proposes a tripartite remedy: first, the SEC should retire its "statutory audit" rules under the 1934 Securities Exchange Act (while retaining the public offering audit requirements of the 1933 Securities Act) in favor of market-driven private audits; second, state corporations law or federal Securities law should be altered to give an express audit right to shareholders that they would exclusively control, with expenses reimbursed by the company; and third, the licensing and regulation of CPAs must be strengthened and either harmonized or unified INTRODUCTION Auditors must be independent from the individuals whom, or businesses which, they have been hired to audit This may not be self-evident at first glance, but it becomes axiomatic when one considers that the long history of audits-reaching across feudal, municipal, and business precedents-is based on the simple notion that a master/principal needs a highly trusted agent on whom she can rely to verify the activities of her other servants/agents1 An auditor who is dependent in some way on these other servants/agents would intuitively seem to be more susceptible to corruption by the latter than an auditor who is fully independent of them This simple concept is the heart of the surprisingly complicated issue of "auditor independence" that has been a major focal point of reform efforts, such as the Sarbanes-Oxley Act of 2002 ("SOX"),2 which seek to prevent the next wave of corporate accounting scandals As I have argued elsewhere, the problem of auditor independence was created by the imposition of a mandatory audit system under the 1930s federal securities laws3 The laws' drafters erred in adopting certain portions of the British Companies Act, 1929 out of context The Companies Act, 1929 was a comprehensive set of provisions for corporate, securities, and business bankruptcy laws in the United Kingdom that had no analogue in US state or federal law4 In addition, the accounting profession at the time was less well organized and regulated5 Unlike the accountants in the United Kingdom, accountants in the United States had relatively low professional status and were not chartered by the government6 For several reasons, many accountants advocated for the new mandatory audit system in the US federal securities laws They hoped that the system would elevate their profession to the status of other learned professions such as law or medicine7 These accountants and others also supported the mandatory audit system because it seemed to be an important feature of the highly regarded "British system," as codified in the Companies Act, 19298 Finally, because the British audits were usually performed by highly prestigious "chartered accountants," the US accountants hoped to cement in the public's mind that US certified public accountants (CPAs) were every bit the equal of UK chartered accountants9 In seeking this prestigious government franchise, however, the accounting profession got more than it bargained for …

Beyond Rational Relations: The Constitutional Infirmities of Anti-Gay Partnership Laws under the Equal Protection Clause

Abstract: Anti-gay partnership laws prevent state and local governments from granting rights, benefits, and obligations associated with marriage to same-sex couples. Fifteen states have anti-gay partnership laws that prohibit the creation of civil unions, domestic partnerships, or specific partnership rights for gay couples. Although enacted under legitimate state authority, these laws come into conflict with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they isolate gay citizens for special disadvantages and burdens within the traditional political processes. Under equal protection analysis, a law that neither burdens a fundamental right nor targets a protected class will be presumed valid if it bears a rational relation to a legitimate governmental interest. However, the U.S. Supreme Court uses a more searching form of rational-basis review when examining laws that exhibit a desire to harm politically unpopular groups like gay citizens. In Romer v. Evans, the Court held that a constitutional amendment prohibiting special rights for gay citizens violated equal protection principles because its extensive breadth could not be rationally justified by legitimate state interests. This Comment argues that certain anti-gay partnership laws similarly violate equal protection principles because the sweeping harm they cause to gay citizens cannot be supported by legitimate state interests in marriage and the family. By contrast, other anti-gay partnership laws likely survive equal protection analysis because their more narrow prohibition of only comprehensive partnership rights corresponds more directly to the potentially legitimate state interests underlying the decision to bar same-sex couples from marrying. Ultimately, the Equal Protection Clause resists all laws that isolate gay citizens for special disadvantages, but requires only the invalidation of anti-gay partnership laws that cause broad and sweeping harm. The contemporary political struggle over marriage equality in the United States has been fast and fierce.1 As gay, lesbian, and bisexual citizens2 gain new access to marriage, civil unions, and domestic partnership benefits across the nation,3 conservative groups seek to solidify the status quo by passing restrictive marriage laws.4 Recently, fifteen states have used their authority over marriage laws to enact anti-gay partnership laws that prohibit for same-sex couples the establishment of civil unions, domestic partnerships, and other rights traditionally reserved to marriage.5 Anti-gay partnership laws prevent state and local governments from creating partnership rights for same-sex couples.6 Unlike laws that restrict marriage to a union between a man and a woman, anti-gay partnership laws bar governmental action with respect to a wide range of potential rights.7 This Comment distinguishes anti-gay partnership laws based on the scope of the laws and on the citizens targeted by the laws.8 The scope of anti-gay partnership laws ranges from Class I laws, which prohibit any and all same-sex partnership rights, to Class II laws, which ban only comprehensive same-sex partnership rights.9 Anti-gay partnership laws target either same-sex couples in particular or unmarried couples in general.10 The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides that no person shall be denied the equal protection of the laws.11 Yet this command must co-exist with the practical necessity of legislative classifications.12 Accordingly, the U.S. Supreme Court has fashioned a three-tiered system of equal protection analysis that defers to legislative judgment if a law bears a rational relation to a legitimate governmental interest, provided that the law does not burden a fundamental right or target a protected class.13 However, the Court has deviated from this system and applied a heightened form of rational-basis review in a line of cases involving laws that display a desire to harm politically unpopular groups, such as gay citizens. …

Enjoys Long Walks on the Beach: Washington's Public Trust Doctrine and the Right of Pedestrian Passage over Private Tidelands

Abstract: Under Washington's public trust doctrine, the state retains a jus publicum interest in tidelands, regardless of ownership This interest obligates the state to protect the public rights encompassed within the jus publicum: navigation, fishing, boating, swimming, water skiing, and corollary recreational activities The state satisfies this duty so long as its actions do not circumscribe public access to those resources, including tidelands, traditionally protected by the public trust doctrine The title to any tidelands property sold into private ownership is similarly burdened; a private tidelands owner may not utilize property in a way that would compromise the state's jus publicum interest and public rights protected thereby This Comment argues that Washington's public trust doctrine encompasses a public right of pedestrian passage over unsubmerged private tidelands, at least where necessary to realize those jus publicum rights previously recognized by the judiciary Judicial acknowledgment of such a right is a logical extension of the Washington State Supreme Court's holding in Caminiti v Boyle that private construction on state tidelands does not impair the jus publicum where the private property owner permits public pedestrian passage as necessary to effectuate public trust rights Furthermore, recognition of a right of public access to private tidelands harmonizes Washington's public trust doctrine with that of other states that also recognize the Institutes of Justinian as an ancient source of public trust principles Finally, the state legislature's repeated identification of a dearth of public recreational access to tidelands also supports this premise, as the scope of Washington's public trust doctrine is shaped by the needs of the state's citizens Two Washington residents decide to go fishing, one on foot and the other by boat1 The first individual accesses state-owned tidelands within a state park, but then continues walking beyond the state park boundary until he reaches a promising location on unsubmerged, privately-owned tidelands from which to cast his line The second individual launches his boat from the state park and then tries his luck while floating over the same private tidelands on which the first fisherman stands just a few feet away The owner of the tidelands, incensed by the presence of these strangers on his property, calls the police Both individuals inform the arriving officer that the public trust doctrine protects the public right of fishing from both tidelands and tidewaters, regardless of the tidelands' private ownership Yet, under the holding of a recent unpublished decision from the Washington State Court of Appeals,2 the officer would allow the second individual to continue fishing from his boat but arrest the first individual traveling on foot for trespass The majority of tidelands within Washington State are privately owned Washington entered the Union with ownership of all tidelands within its borders up to and including the line of ordinary high tide, with the exception of those areas previously reserved by the federal government3 The Washington Constitution, while establishing state ownership of the state's 2337 miles of tidelands,4 provides no guidance as to their management Intent on encouraging development, the state transferred sixty-one percent of its tidelands into private ownership between 1890 and 19795 A recent study estimates that approximately seventy-three percent of the Puget Sound coastline is currently in private ownership6 Yet approximately two-thirds of Washington's population lives in the counties bordering Puget Sound, with some eighty-five percent of this subpopulation residing within ten miles of the Puget Sound shoreline7 In 1987, the Supreme Court of Washington-perhaps responding to the extensive transfer of tidelands into private ownership during the previous century-declared in Caminiti v Boyle8 "that the [public trust] doctrine has always existed in the State of Washington …

Zero Privacy: Schools Are Violating Students' Fourteenth Amendment Right of Privacy under the Guise of Enforcing Zero Tolerance Policies

Abstract: The Fourteenth Amendment to the United States Constitution provides a right of privacy that protects against unwarranted governmental interference with an individual's contraceptive choices. This privacy right protects minors as well as adults. School officials serve as government actors for the purpose of Fourteenth Amendment analysis. Zero tolerance drug policies are school disciplinary policies that mandate predetermined and frequently severe consequences for specific offenses, often including the possession of legally prescribed or legally obtained over-the-counter medication. Zero tolerance drug policies have resulted in the often very public discipline of students for possessing a wide array of otherwise legal medication, including birth control pills, without parental permission. This Comment argues that schools may not enforce their discipline policies in ways that violate a minor's right of privacy with regard to contraceptive choices. Zero tolerance policies as applied to minors in possession of legally obtained contraceptives must not force students to notify their parents of their procreative choices in order to comply with the policy. At a minimum, such policies must include a bypass option that enables students to avoid acquiring parental consent in order for those students to possess contraceptives at school. In addition, zero tolerance policies may not violate a minor's constitutional right to be free from state dissemination of their private affairs-a natural consequence of disciplining students in possession of contraceptives in violation of the zero tolerance policy. Erin is a typical high school junior.1 She has never been in trouble at school. One afternoon, a teacher sees Erin put a package of pills in her pocket. The teacher reports this to the school administration and Erin is called into the principal's office. Erin readily acknowledges that she is in possession of birth control pills, which she obtained legally at a local health clinic. The principal informs Erin that possession of medication without parental permission violates the school's "zero tolerance" policy,2 and that the school is required to suspend her under that policy. Erin has not told her parents that she is taking birth control pills, a fact that her parents necessarily become aware of when informed of her suspension by the school. Erin's school community and the local media also become aware of the fact that the school suspended her for possessing birth control pills.3 Furthermore, the district tells Erin that her permanent high school record will reflect that she was disciplined for illegal possession of a drug.4 Schools first implemented zero tolerance drug policies in the 1980s.5 These policies often ban the possession of prescription and over-the-counter medication,6 thereby including medical contraceptives such as birth control pills, hormonal patches, and the "morning after" pill.7 Many of these policies allow students to bring legally prescribed or over-the-counter medication to school only if the student's parent or guardian first approves the student's possession of the medication.8 A student who violates such a zero tolerance policy is subject to mandatory, predetermined, and often severe consequences.9 A minor's right of privacy regarding contraceptive choices is a fundamental right protected by the Fourteenth Amendment to the U.S. Constitution.10 State interference with this right is constitutional only where it advances a significant state interest in regulating the behavior of minors that is not present in the case of adults.11 In addition, a state regulation requiring parental consent or notification of a minor's procreative choices is unconstitutional unless it grants the minor access to an alternative procedure whereby she may avoid parental involvement.12 Moreover, where a minor's private choices involve the decision "whether to bear or beget a child,"13 certain safeguards must be in place to protect the confidentiality of the minor's decision-making. …

International Delegations and the New World Court Order

Abstract: In Medellin v. Dretke, the U.S. Supreme Court squarely considered the domestic judicial enforceability of a judgment by the International Court of Justice for the first time. Although the Court ultimately dismissed the case due to President George W. Bush's intervention, the issue that won the Court's attention-the domestic legal status of international tribunal judgments-will almost certainly return to the Court in the near future. When it does, the Court will be faced with calls from leading scholars to enforce the judgments of international courts and tribunals as part of a "new world court order," characterized by cooperation between international and domestic courts. This Article takes issue with that stream of scholarship by laying out the first comprehensive constitutional critique of judicial enforcement of international tribunal judgments. U.S. constitutional doctrine and practice with respect to the enforcement of international law obligations confirms that domestic courts have no independent authority to implement international tribunal judgments. Indeed, independent judicial enforcement of international tribunal judgments of the kind sought by the petitioners in Medellin would result in potentially excessive delegations of the U.S. foreign affairs power. To avoid this constitutional problem, this Article recommends that courts treat all such international tribunal judgments as non-self-executing absent a clear statement in the treaty that judicial enforcement is permitted. INTRODUCTION In December 2004, the United States Supreme Court granted a petition for certiorari to consider whether a judgment of the International Court of Justice (ICJ) is binding on U.S. courts.1 In Medellin v. Dretke,2 a Mexican national facing execution by the State of Texas sued to enforce the ICJ's ruling that U.S. courts must reconsider his claim for relief under the Vienna Convention on Consular Relations (VCCR).3 The Court thus agreed to consider the important but unsettled question of an international tribunal judgment's status within U.S. law. Although the U.S. has participated in forms of international adjudication from its earliest history,4 the Supreme Court had never before directly considered the domestic legal significance of judgments issued by any international tribunal. The question of the domestic enforceability of international tribunal judgments, however, remains unsettled. The Court dismissed the case without deciding the issues it had planned to consider due in large part to President George W. Bush's intervention.5 At least four members of the Court appear ready to grant certiorari in a future case that raises the same question.6 Moreover, the issue of the domestic enforceability of an international court's judgment will not go away. Litigants are increasingly asking U.S. courts to enforce judgments by international tribunals and courts. Not only has the U.S. government been the subject of three adverse judgments issued by the ICJ in the last eight years,7 but the U.S. has also suffered a number of adverse judgments before the dispute resolution panels of the World Trade Organization8 and the North American Free Trade Agreement.9 Moreover, the U.S. is party to hundreds of treaties and executive agreements binding it to dispute resolution by a variety of international tribunals and courts.10 Increasingly, litigants before international tribunals will, like Jose Medellin, seek to enforce their judgments directly in U.S. courts. Many, if not most, legal scholars have welcomed the rise of international tribunals and the increasing frequency and importance of their interaction with domestic courts.11 Indeed, leading scholars have theorized that interaction between international tribunals and domestic courts forms a central component of an international order characterized by respect for and submission to international law and international institutions.12 The briefing before the Supreme Court in Medellin reflected arguments advanced by these scholars. …

[81WashLRev0621] Congressional Power to Regulate Noncommercial Activity Overseas: Interstate Commerce Clause Precedent Indicates Constitutional Limitations on Foreign Commerce Clause Authority

Abstract: Although the U.S. Supreme Court has not yet ruled any statutes criminalizing the conduct of Americans overseas unconstitutional under the Foreign Commerce Clause, three U.S. Courts of Appeals decisions use the concept of enumerated powers-important in U.S. Supreme Court decisions that invalidate statutes grounded in the Interstate Commerce Clause-to suggest limitations on Congress's Foreign Commerce Clause power. In two decisions, the U.S. Courts of Appeals for the Fifth and Ninth Circuits employed the U.S. Supreme Court's Interstate Commerce Clause framework when analyzing statutes under the Foreign Commerce Clause. In so doing, these courts suggest that Foreign Commerce Clause power is not plenary-the constitutional concerns driving the U.S. Supreme Court to recognize limitations on Congress's Interstate Commerce Clause power also impose limitations on Congress's Foreign Commerce Clause power. In the third decision, the Ninth Circuit Court of Appeals suggested a similar limitation, holding that Congress could enact a statute under its Foreign Commerce Clause power only if the statute demonstrated a constitutionally tenable nexus with foreign commerce by including an economic component. Section 2423(f)(1) of the PROTECT Act, which criminalizes noncommercial sexual abuse of minors overseas, fails to withstand Foreign Commerce Clause scrutiny under current U.S. Courts of Appeals analyses because the statute regulates criminal conduct occurring outside the channels of foreign commerce and does not include an economic component. In United States v. Clark,1 the U.S. Court of Appeals for the Ninth Circuit held that 18 U.S.C. § 2423(f)(2),2 a provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act),3 did not exceed Congress's enumerated authority "to regulate Commerce with foreign Nations."4 In rejecting the defendant's Foreign Commerce Clause challenge against § 2423(c), the Ninth Circuit deliberately limited its holding to § 2423(f)(2)5-which prohibits U.S. citizens and permanent residents from engaging in commercial sex acts with minors overseas.6 The court did not address a different part of the PROTECT Act, namely 18 U.S.C. § 2423(f)(1),7 which criminalizes noncommercial sexual abuse of minors overseas.8 This Comment addresses Congress's constitutional authority under the Foreign Commerce Clause to enact § 2423(f)(1) of the PROTECT Act. It argues that, at least under the analyses currently employed by the U.S. Courts of Appeals,9 the criminalization of noncommercial sexual abuse of minors overseas falls outside the legitimate scope of Congress's Foreign Commerce Clause authority. The current Foreign Commerce Clause analyses in the U.S. Courts of Appeals draw heavily on the U.S. Supreme Court's Interstate Commerce Clause analysis.10 Accordingly, Congress's power to enact legislation under the Foreign Commerce Clause appears limited to laws that would either satisfy the Interstate Commerce Clause framework or demonstrate a tenable nexus with foreign commerce by including an economic component. section 2423(f)(1) does not withstand Foreign Commerce Clause scrutiny under current U.S. Courts of Appeals analyses because the provision fails to demonstrate either of these required connections to commerce. Part I of this Comment describes § 2423(f)(1) of the PROTECT Act. Part II discusses the limits of congressional authority under the Interstate Commerce Clause. Part HI describes two U.S. Courts of Appeals decisions that evaluate Foreign Commerce Clause challenges by employing the U.S. Supreme Court's Interstate Commerce Clause analysis. Part IV examines a slightly different analysis, applied by the Ninth Circuit in Clark, which requires that the text of the challenged statute demonstrate a constitutionally tenable nexus with foreign commerce. Applying those analyses to § 2423(f)(1), Part V argues that Congress's criminalization of noncommercial sexual abuse of minors overseas cannot be justified solely on the basis of Congress's Foreign Commerce Clause authority. …

Appellate Review of Discovery Orders in Federal Court: A Suggested Approach for Handling Privilege Claims

Abstract: The federal circuit courts of appeals have generally recognized that a party suffers real hardship when the district court erroneously orders it to disclose privileged information. Review of the disclosure order after final judgment is usually an insufficient remedy; once the information has been disclosed, it can never again be fully confidential. Consequently, the courts have struggled to provide a mechanism by which such orders can be immediately appealed. However, privilege orders presenting novel questions of law or issues of first impression do not clearly fit within the doctrinal requirements of the most common methods of interlocutory review. Appellate courts have therefore applied varying exceptions or extensions to those requirements in an effort to encompass such privilege orders within them. This Article proposes a two-tiered system of review to remedy the harm caused by erroneous disclosure orders without stretching the current system of interlocutory review so far that the benefits of the final judgment rule vanish. The Article recommends that review begin in the district court with a motion to certify a discretionary appeal under 28 U.S.C. § 1292(b), which requires a district court to certify an order that "involves a controlling question of law as to which there is substantial ground for difference of opinion," if "an immediate appeal from the order may materially advance the ultimate termination of the litigation." If a district court refuses to certify an order even though it clearly satisfies the requirements of § 1292(b), then the appellate court should exercise its mandamus power to review the case. This two-tiered system of review would provide a consistent mechanism by which the most difficult and important privilege orders could be immediately reviewed, but would not impose too heavy a burden on the already-crowded appellate dockets. INTRODUCTION Imagine that you are a litigant in a civil case. Your adversary requests discovery of some of your most sensitive information-your company's trade secrets, records of conversations with your attorney, even psychotherapy records. You assert a claim of privilege in an attempt to resist discovery,1 but the district court orders you to disclose this information and even denies your request for a protective order. Complying with the disclosure order and waiting until after trial to appeal the discovery decision will not help you; once the information is made known, the damage is done. What do you do? In many state courts, the answer is easy-you probably have a right either to make an interlocutory appeal or to seek immediate review by mandamus.2 In federal court, the answer is much more difficult. The circuit courts are deeply split on the question of what-if any-type of interlocutory review should be available to challenge an order requiring the discovery of allegedly privileged information. Some courts require you to disobey the order, stand in contempt of court and, if the court issues a criminal contempt order, challenge the discovery ruling in an appeal of the contempt order.3 Other courts allow you to file a discretionary appeal, but only if you are one of the lucky few who can persuade the district court and the circuit court to agree that your case merits that appeal.4 Still other courts allow you to file an appeal as of right under the collateral order doctrine, if your case meets certain requirements.5 Finally, some courts might be willing to exercise their authority to issue a writ of mandamus.6 With regard to mandamus proceedings-the most common vehicle for immediate review-the circuits are divided on the requirements necessary to obtain such review. Some courts have held that privilege determinations can be reviewed by mandamus only in truly extraordinary cases,7 while other courts have held that mandamus review should be available whenever delayed review of a privilege ruling would cause irreparable harm. …