Showing papers on "Plurality opinion published in 2001"

Designated diffidence: District Court Judges on the Courts of Appeals

Abstract: Since 1980, District Court Judges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues They contribute notably fewer majority opinions and dissents In addition, their participations do not reflect their professional or personal backgrounds to nearly the same degree as their appellate colleagues do when voting on labor law matters The authors' findings and analyses regarding the behavior of designated district judges should be of interest to appellate courts considering the challenges of caseload management and to scholars studying processes and outcomes in the courts of appeal Over the past two decades, district court judges-designated pursuant to federal statute (28 USC 292 [1994] )-have participated in nearly one out of every five cases decided on the merits by the United States Courts of Appeals The circuits invite such participation principally because there are not nearly enough active and senior appellate judges to meet the demands of a burgeoning appeals court docket (Baker 1994, McKenna 1993) Responding to this imperative, designated trial court visitors have helped decide more than 75,000 court of appeals cases since 1980 Scholars in law and political science have on occasion questioned the role played by these judicial invitees Some have contended that the pre-judicial backgrounds and trial-oriented experiences of district judges differ in material respects from those of "regular" appellate judges (Saphire & Solimine 1995; Slotnick 1983; Carrington 1969) Others have worried that district judge visitors may jeopardize the consistency-of-law values that inform the circuit courts' role in creating and clarifying legal precedent, or that participation by these same judges may compromise the collegiality and vitality of appellate court deliberations (Green & Atkins 1978; Saphire & Solimine 1995; Wasby 1981) It also has been suggested that district judge participation may undermine perceptions of legitimacy, as the appellate courts' presumptively neutral function of declaring the law shades into more prescriptive policymaking (Alexander 1965; Green & Atkins 1978; Note 1963) Surprisingly, little empirical analysis exists regarding how these trial court visitors behave in their secondary appellate role There is a dearth of information as to whether designated judges participate or vote distinctively from their appellate brethren on substantive law matters It also is unclear whether district judges bring their individual values and experiences to bear on the judicial enterprise to the same extent as their panel colleagues, or whether they reflect those values and experiences in the same way as they do when serving on the trial bench This study provides insights into the role of district court judges in appellate decisionmaking We examine district judge participations in more than 1,100 published and unpublished court of appeals cases reviewing decisions by one federal agency-the National Labor Relations Board (NLRB) -during a recent seven-year period Our database encompasses all appellate cases decided between October 1986 and November 1993 that resolve unfair labor practice claims under the National Labor Relations Act (NLRA [1994])1 We have identified the 223 appellate judges and 105 district judges who participated on the court of appeals panels, and how they voted on more than 2,000 substantive labor law issues as to which appellate courts either affirmed or reversed the Board …

Weed-Free I.P.: The Supreme Court, Intellectual Property Interfaces, and the Problem of Plants

Abstract: Intellectual property law offers little solace for the fastidious. Intellectual property regimes germinate and proliferate in a generally untidy manner. Intellectual property regimes have fuzzy edges, and many regimes overlap with others - trademarks with copyrights, patents with trade secrets, copyrights with design patents - in unpredictable, unusual, and even alarming ways, resulting in complex intellectual property interfaces. In the past, the Supreme Court exhibited a measure of tolerance for messy interfaces among intellectual property regimes. Now, the Court's attitude may be shifting. Last term, the Justices showed signs of squeamishness over the prospect of concurrent patent and trade dress protection. This term, the Court has agreed to hear J.E.M. Ag Supply v. Pioneer, another, more complex case involving concurrent protection. In J.E.M., the problem is plants. The precise interface issue is whether plant innovation should be exclusively consigned to protection under the specialized "plant variety protection" regime, or whether it may also concurrently be protected under the general utility patent regime. In addition to its substantial practical significance, the case also raises many important theoretical questions: to what extent should the law tolerate messy interfaces between intellectual property regimes? Should innovators be entitled to accumulate protections, or should they be forced to elect from among regimes? Do differences among intellectual property regimes invariably signal conflict (and inefficiencies), or might they also signal synergies? In this essay, we analyze the intellectual property interface problem through the lens of the J.E.M. Ag Supply v. Pioneer case. We introduce the regimes at issue and explain the interface arguments, and analyze potential judicial and legislative approaches to reconfiguring the interface. We suggest that when deciding J.E.M., the Court should focus on the following considerations: (1) regarding the specific interface issue in the case - the utility patent/plant variety interface - the Court has already dealt adequately with the principal textual arguments in Chakrabarty, and recent scholarship only reinforces the correctness of the Chakrabarty plurality opinion. (2) reconfiguring an interface between patent and non-patent regimes by imposing judicially-crafted exceptions to patent eligibility is counterproductive; it stimulates opportunistic patent claims drafting and ancillary litigation, and may result in the diversion of innovation to less socially-desirable protection schemes. (3) reconfiguring an interface between patent and non-patent regimes should be left to the legislature when existing, entrenched doctrine supplies no compelling solution, and where the interface problem implicates complex policy judgments best rendered on a developed empirical record. Congress has not created intellectual property regimes so as to fit together seamlessly. Sometimes the interfaces are messy and create the potential for concurrent protection pursuant to overlapping regimes. Whether this configuration of intellectual property regimes advances technological progress or thwarts it is a complex policy judgment. In the case of plant innovation, it is a judgment best suited for Congressional deliberation. The alternative - judicial reconfiguration of the utility patent/PVPA interface through the use of patent eligibility restrictions - is likely to impose costs without achieving concomitant benefits.

Majority Opinion Assignment in Salient Cases on the U.S. Supreme Court: Are New Associate Justices Assigned Fewer Opinions? *

Abstract: Are new associate justices on the United States Supreme Court assigned fewer salient opinions than can be expected by chance? This question was investigated for the 1930 to 1995 terms of the Court, a sixty-six-year period in which thirty-two new associate justices took their oath of office. I discovered that first-year associate justices were assigned less than half the opinions than can be expected by chance. Second-year associate justices, however, were not disadvantaged in opinion assignment in the salient cases.

The Benefits of 'Judicially Unmanageable' Standards in Election Cases Under the Equal Protection Clause

Abstract: The conventional story about the Supreme Court's decision in Baker v. Carr to adjudicate disputes over legislative apportionment is that political market failure required judicial intervention. The market failed in the case of unequally populated districts because existing legislators could not be expected to vote themselves out of a job, nor would voters who benefit from the existing apportionment plan elect legislators inclined to do so. This market failure makes a strong case for extra-legislative intervention in apportionment, assuming we - or at least courts - may make the normative judgment that unequally populated districts are improper. Thus, a subtext of the conventional story is our trust in the judiciary. We need faith that judges' impartiality and general wisdom makes up for the lack of particular competence in dealing with political matters. Opponents of judicial intervention doubted judicial competence in this area, calling for nonjusticiability in this area because "standards...for judicial judgment are lacking." This concern over "judicial manageability" turned out to be seriously exaggerated in the legislative apportionment and districting cases, where the court's adoption in Reynolds v. Sims of a strict "one person, one vote" standard required little more than knowledge of "sixth grade arithmetic," but it has proven more real in other cases, most recently, in Bush v. Gore.This Article argues that the Baker majority and dissenters apparently failed to appreciate the benefits of judicial unmanageability for dealing with election cases under the Equal Protection Clause of the 14th Amendment. Precisely because these cases require the Supreme Court to make (at least implicit) normative judgments about the meaning of democracy or the structure of representative government, the danger of manageable standards is that they ossify the new rules and enshrine the current Court majority's political theory. That enshrinement is precisely what happened in the one person, one vote cases.We cannot be surprised that the Court adopted the manageable standard of equally apportioned districts in Reynolds; manageable standards lower administrative costs, decrease the chances of lower court deviation from Supreme Court preferences, and increase reliance interests of those involved in the electoral process. But we must recognize the cost of manageable standards as well.In contrast to Reynolds, when the Court does not articulate a manageable standard, it leaves room for future Court majorities to deviate from or modify rulings in light of new thinking about the meaning of democracy or the structure of representative government, or based on experience with the existing standard. It also allows for greater experimentation and variation in the lower courts using the new standard. Following modification and experimentation, it then often will be appropriate for the Court to articulate a more manageable standard.In Part I of this Article, I explore whether the Court adopted an appropriately precise standard in the "one person, one vote" cases. I argue that the Court adopted the most manageable of standards that in retrospect has been too restrictive of political realities. I further consider how politics and jurisprudence might have been different had the Court adopted Justice Stewart's alternative, unmanageable standard for judging malapportionment claims. Justice Stewart's standard would have provided greater flexibility in dealing with apportionment problems and provided greater information to the Justices as they refined the new constitutional standards.In Part II of this Article, I explore three additional areas in which the Court has adjudicated election cases under the Equal Protection Clause: cases involving wealth qualifications (Harper), suffrage qualifications (Kramer), and vote counting (Bush v. Gore). I use these three cases to illustrate how the Court may increase the unmanageability of the equal protection standards as it faces a more controversial equal protection claim.Finally, in Part III, I briefly show how unmanageable standards may counteract the possibility of court-imposed proportional representation, which lurks in the background of a number of election cases under the Equal Protection Clause. Unmanageable standards sometimes will be a better alternative than denying relief altogether. I make this point by contrasting two cases. In Mobile v. Bolden, the Court rejected a claim that an at-large districting plan violated equal protection. It did so at least in part because it believed that to hold otherwise would have imposed a system of proportional representation on the creation of legislative bodies. In Davis v. Bandemer, the partisan gerrymandering case, the Court recognized a claim of an unconstitutional partisan gerrymander under the Equal Protection Clause, but did so using an unmanageable standard. Contrary to the predictions of the Justices not signing the plurality opinion and of some commentators, the Court in Bandemer successfully avoided imposing a proportional representation test on partisan gerrymandering claims. Thus, the Mobile Court was incorrect that a decision under the Equal Protection Clause would have led inexorably to proportional representation.