Working Papers

Abstract:

In their book Patent Failure, Jim Bessen and Michael Meurer show that patents outside the fields of chemistry and pharmaceuticals discourage innovation. One reason is that, outside these two fields, patents provide poor notice of what technology is owned and who owns it. Poor notice is due in part to the doctrine of equivalents (DOE). This essay argues against abolishing the DOE, and instead proposes two reforms to mitigate the DOE's interference with notice. First, courts should always stay permanent injunctions against DOE infringement for a modest period of time, e.g., for one year from the date of final judgment. Second, courts should treat equivalents under 35 USC 112(6) the same as DOE equivalents. This essay also briefly reevaluates the doctrine of prosecution history estoppel in light of Patent Failure.

Abstract:

Over the last twenty-five years, the Supreme Court has expanded protection for constitutional property rights. After decades of neglect, the Court has begun to take property rights seriously. At the same time, however, protection for property rights still falls far short of that enjoyed by most other individual rights. In case after case, the Court has expressed support for property rights, but stopped short of providing them with more than minimal protection. Despite the Court's own rhetoric to the contrary, property rights are still the "poor relation" of the Constitution.

Part I of this article analyzes the Court's recent property rights jurisprudence. It particularly focuses on the Court's decisions interpreting the Takings Clause of the Fifth Amendment. I examine key decisions on public use, regulatory takings, remedies for takings clause violations, and access to federal courts for citizens who claim that their property rights have been violated. In most of these fields, recent court decisions have modestly expanded protection for property owners. However, the Court's decisions in each area fall far short of giving property rights the same degree of protection as that extended to most other individual rights.

Part II considers some of the standard rationales for denying judicial protection for property rights equal to that enjoyed by other constitutional rights. It addresses claims that property rights deserve little or no protection because they are already protected by the political process, because the courts lack expertise on "economic" issues, because judicial protection would benefit the rich at the expense of the poor, because the Courts should not enforce supposedly arbitrary common law property baselines, and because judicial protection for property rights might harm the environment. I suggest that each of these concerns is overstated, and that many apply with equal or greater force to the enforcement of other constitutional rights. Moreover, expanded judicial protection for property rights might actually benefit the poor more than the wealthy and may in some important cases promote environmental protection rather than diminish it.

Finally, Part III briefly considers the future of constitutional property rights. In the long run, judicial protection for property rights can only be effective if it is embraced by jurists from a broad portion of the political spectrum. Property rights probably will not get much more judicial solicitude than they enjoy today if support for them remains confined to judicial conservatives and libertarians. Outside the Court, some liberal jurists and activists have shown an increasing willingness to reconsider traditional post-New Deal hostility to property rights. The strong left of center reaction against the Court's decision in Kelo v. City of New London may point the way forward to cross-ideological cooperation on these issues.

Abstract:

Outlines the argument that law schools are one of the two great barriers to entry of the legal professions cartel. The legal education cartel has some unusual features that channel and constrict the cartel generated rents into forms peculiar to the academic world. The central question explored is who owns the law school, and what do they seek to maximize. The argument made is that law schools, much like their almost universal parents, universities, are hybrid enterprises. They partake in the characteristics of, and bear similarities to: (1) the worker owned firms in the former Yugoslavia; (2) traditional non-profit enterprises; and (3) large equalitarian partnerships. In addition there is something quite unusual in the extreme sorting function of law schools. In legal education, more than in the rites of passage of any other profession, the most powerful impact of the law school at which one matriculates is on the sorting of the graduates based on their entering credential s, rather than on any putative superiority of the legal education they receive at higher ranked institutions.

Abstract:

This essay provides a concise overview of the history of the constitutional status of freedom of contract in the United States, with particular attention to the rise and fall of the "liberty of contract" doctrine in the early 20th century.

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In District of Columbia v. Heller, the Supreme Court finally decided that the Second Amendment really does protect the right of the people to keep and bear arms, and that this includes at least the right to keep a handgun in the home for self defense. Understandably, all eyes have turned to the next logical question. Is the right to arms protected only from federal infringement, as in Heller, or is it also good against state and local governments? Test cases have already been filed challenging Chicago’s handgun ban, which is similar to the regulation invalidated in Heller. The “incorporation” issue—whether the Fourteenth Amendment protects the right to keep and bear arms from infringement by the states - may be virtually dispositive in those cases, and it will be a threshold issue in many others as well.

This short essay reviews the principal precedents that the courts will have to confront. Part II concludes that the lower courts, though not the Supreme Court, are probably barred by precedent from finding that the right to keep and bear arms is protected by the Fourteenth Amendment’s Privileges or Immunities Clause. Part III shows that existing Supreme Court precedent points very strongly in favor of incorporation under substantive due process. Part IV argues, on the basis of existing precedent, that the inferior courts need not wait for the Supreme Court to reach this conclusion. They can best perform their role in our hierarchical judicial system by treating the Supreme Court’s modern incorporation jurisprudence as law. If they do, they should conclude that the right to keep and bear arms is protected against infringement by the state governments, just as it is protected against the federal government.

Abstract:

The conventional wisdom is that the definition of patents as property has been long settled - patents secure only a right to exclude. In exploring the intellectual history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, Congress and courts defined a patent in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding doctrines in the American patent system, such as the conveyance default rules now known as patent exhaustion doctrine. Significantly, the Supreme Court has invoked such historical doctrine in reversing the Court of Appeals for the Federal Circuit in its many recent patent law decisions.

For this reason, the conceptual break between modern and historical patent doctrine is not simply a matter of philosophical inquiry. Today, scholars and courts believe that patents must secure only a right to exclude as a matter of logical necessity, dismissing the historical statutes and case law as confusion or dicta. Yet, they do not realize that their definition of patents as property is a uniquely modern conception, which follows directly from the legal realists’ property theory in land. In identifying this intellectual history for the first time, this Article reveals how the legal realists’ theoretical work concerning real property has influenced twentieth-century patent doctrine, and how this may be an under-appreciated factor contributing to the increasingly tumultuous debates over patent doctrine.

Abstract:

District of Columbia v. Heller concluded, on the basis of a detailed analysis of the original meaning of the Second Amendment, that American citizens have a constitutional right to keep and bear arms for personal self defense, and held that this entails at least the right to keep a handgun in the home and to render it operable for the purpose of immediate self defense. The Court rejected a theory - unknown to the founding generation but accepted by most of the lower federal courts during the twentieth century - under which the Second Amendment protects only a right of state governments to maintain military organizations, or perhaps a right of individuals to have weapons only while serving in such organizations.

In this case, the Justices were confronted with only one significant Supreme Court precedent, an eight page opinion in United States v. Miller. Surprisingly, Heller contains an embarrassingly and pointlessly fictional statement of the procedural facts of the Miller case. More importantly, the Court does quote from Miller, and the Court does interpret the Miller opinion, but in doing so it distorts the holding beyond all recognition.

This brief essay analyzes Heller's treatment of Miller. The interpretations of the Second Amendment in the two cases are irreconcilable. There was no legal need for the Heller Court to treat Miller as a binding precedent, and no legal excuse for pretending that Miller's holding was consistent with the interpretation of the Constitution that Heller rightly adopted. The treatment of Miller appears to be part of a larger political strategy in which the Court displayed a calculated faint-heartedness toward the original meaning of the Second Amendment. We can only hope that future Courts will treat Heller in a more lawyerly manner than Heller treated Miller.

Abstract:

When we introduced the Deadwood Report in our Winter 2008 issue, we staked out two main positions on what we would treat as scholarship when assessing faculty productivity. Fair Warning to Law Schools..., 11 GREEN BAG 2d 139, 144. We are standing by one of those positions and abandoning the other, at least for now. First we said, "Not all writing is scholarship and not all scholarship is the same" - a position we still like. For now we plan to proceed with a simple independent-sufficiency-for-tenure standard: We know that a professor can satisfy the scholarship requirement for tenure with a record consisting exclusively of articles in scholarly journals or exclusively of books. We know of no law school that grants tenure based on a record consisting exclusively of any other form of publication. But the Green Bag is not all-knowing, and so, as we said in our Winter 2008 issue, we will make exceptions. We do hope to provide some insight into one touchy area: the relative worth of student, faculty, and practitioner judgments about scholarly value. As with the weighting of teaching, we will be asking deans for help. See Deadwood Report Update: Pick Your Own Weight, 11 GREEN BAG 2d 275. The draft survey below invites deans to assign weights to a variety of scholarly products, including articles appearing in journals edited by students, professors, and practitioners. As before, we welcome your comments on the draft. Second we said, "Inbreeding is bad policy"; - a position we cannot justify now. For a variety of reasons, works appearing in organs published by your school or your students, or on which a member of your faculty serves as an editor or in some similar capacity, do count.

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Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of "jurisdictional questions" that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

Abstract:

Horizontal merger evaluation is heavily reliant on market definition. While a SSNIP framework formats the analysis, demand elasticity evidence used to apply the test is often sparse, as is often found in high-technology industries. This paper examines other sources of evidence that reveal the dynamics of market structure, data that are also probative in the evaluation of competitive effects. These sources include capital valuations of firms, financial event studies, and the public positions taken with respect to the merger by interested parties. Such evidence is examined in the XM-Sirius merger (2007-08), and shown - in two of the three instances - to be relatively informative in merger welfare analysis.

Abstract:

This book chapter contributes to a conference hosted by the University of Dallas Department of Politics on modern America and the legacy of the Founding.  It surveys how late nineteenth-century Progressive political and social-science theory percolated into early and mid-twentieth-century federal constitutional law.  The chapter as written provides an introductory survey, intended to be accessible for graduate students studying American politics and government.  It illustrates theoretical developments by showing how and to what extent they shaped structural constitutional law on the Commerce Clause and separation of powers.

 

In both structural constitutionalism and constitutional interpretation, constitutional law has gradually shifted over a century to accommodate Progressives’ critique of the Founders’ constitutional order.  This shift occurred in several waves, the first of which was theoretical.    Between roughly 1880 and 1920, leading Progressive political scientists developed a broad critique of the pre-1900 constitutional order organized around a Hegelian conception of a “living Constitution.”  This critique then took hold in American practice largely, though not completely, between roughly 1920 and 1950, as Progressive political theorists’ students took leading teaching positions in the legal and political-science academies, leading offices in President Franklin Roosevelt’s administration, and seats on the U.S. Supreme Court.  By the close of the New Deal, leading academics and judges assumed, contrary to pre-1900 constitutional law, that Congress had general regulatory powers over the American economy, and that Congress could transfer those powers to centralized agencies largely free from direct legal supervision by the President or the courts. 

 

At the same time, the Progressives’ theoretical critique did not entirely displace the pre-1900 constitutional tradition.  The New Deal Court did not cite “the living Constitution” as an independent source of legal meaning that by itself required the Court to break with its pre-1900 precedent.  Instead, the Supreme Court continued to pay respect to the forms of pre-1900 structural constitutional law, but concluded that the Progressives’ and New Dealers’ innovations fit within the details of those forms and Supreme Court precedent.  The Court did so in part for institutional reasons, because the judiciary’s power comes in large part from the Constitution’s status as a source of law and the judiciary’s reputation for following precedent.  Separately, however, and in marked contrast to later Courts, leading Progressive political theorists and the New Deal Court were ambivalent about the possibility that the living Constitution might serve as an explicit source of constitutional meaning. 

 

Although this chapter is written as an introductory survey, it may be of interest to constitutional theorists for two reasons.  Many constitutional scholars assume that “living Constitution” theory is primarily a tool of constitutional interpretation, and that it emerged only with the Warren Court.  It may be of interest to learn that living Constitution theory had origins in political theory.  Separately, the chapter sheds light on an important tension in contemporary constitutional adjudication.  The legal system is more incremental, conservative, and formal than political theory.  Even when judges reject the normative foundations of the original Constitution, they advance alternative normative conceptions indirectly and haphazardly, out of a lawyerly respect for structure and form.

Abstract:

In Recovering Self-Evident Truths: Catholic Perspectives on American Law, editors Michael A. Scaperlanda and Teresa Stanton Collett offer a collection of essays that revive the connections between faith and reason and between truth and hope as the foundation for progress. Given the importance of papal encyclicals, work, and the increasing demands of the regulatory state, this article concentrates on three central and related themes that surface throughout the book: the difficulty, in America’s current epoch, of acknowledging any shared truths, the question of labor and employment policy in a pluralistic society, and the relative balance needed between state intervention on the one hand and voluntary associations, properly-formed communities and individual autonomy, on the other. Ultimately, these themes give rise to a fundamental question: can liberalism be coherently conceived within parameters provided by Catholic social thought?

 

Scaperlanda and Collett’s enterprise, featuring more than a dozen authors, is held together by the authors’ persistence in pursuing objective truth as the criterion of judgment.  Objective truth may be in conflict with the concept of pluralism, which declines to concede that rights necessarily have a moral footing rooted in truth. Moreover, government officials, who wield state power, ostensibly to achieve the common good and to secure moral and economic progress, may have an interest in denying the truth. President Franklin Delano Roosevelt’s New Deal illustrates this possibility. Seeking moral and social progress, the book concentrates on Catholic anthropology, “which should equip Catholic legal thought for dialogue with secular disciplines and secular culture by opening up a space of truth in what is common to all.” Regardless of how attractive this move may be, complications surface.

 

It is not clear whether or not the United States can provide an environment, where society can move toward a shared understanding of justice, progress and the common good. If not, can self-evident truths receive an adequate hearing in a society in which individuals are disoriented by endless possibilities offered by postmodernism? I argue that the book, Recovering Self-Evident Truths: Catholic Perspective on American Law can be a source of progress toward a proper account of the common good if American society accepts two observations: (1) law, as a coercive force, cannot fully fashion change within the human person, and (2) the correctness of Pope John Paul II’s assertion that structural transformation of society is secondary to moral renovation.

Abstract:

Despite the attention given to the anticompetitive effects of gerrymandering on national and state elections, little notice is paid to the least competitive legislative elections in America: its city council elections. In cities with partisan elections, individual competitive seats are rarer than at the national level and there is almost never competition for partisan control of councils. Nonpartisan city council elections are even worse, with virtually undefeatable incumbents and no policy competition of any kind. The dominant explanation in the political science literature for this phenomenon is that the lack of partisan competition in local elections is a result of the issues at play in local politics. Local politics, the argument goes, is not ideological - it is only about the competence with which public goods are provided and the allocation of these goods to different groups. This claim cannot stand up to scrutiny. Debates over issues like policing strategy and urban development are ideological, and voters do have beliefs about them, but there is still no partisan competition.

This paper argues that the explanation for the lack of partisan competition in city council elections lies in the laws governing these elections. Several laws - by my definition "unitary party rules" - serve to ensure that the national parties are on the ballot in local elections and that candidates, activists and voters do not defect from dominant national parties during local elections. When combined with the little information available about individual council candidates, the existence of the national party heuristic on local ballots crowds out other information and the laws create severe barriers to entry for potential local parties. The result is that the vote in city council elections directly tracks the vote in national elections, despite strong empirical evidence that voters have very different beliefs about local and national issues. In cities in which one party dominates at the national level, there is no competition. Thus, local legislatures are extremely unrepresentative of voter preferences and have little democratic legitimacy. Repealing the unitary party rules would spur a rearrangement of the two-party system at the local level and create party competition at the local level.

Abstract:

This chapter reviews the law and economics of predatory pricing.  Areeda and Hovenkamp (2006, 323) noted that other areas of the law of monopolization are "in much the same position as the theory of predatory pricing was in the 1970s: no shortage of theories, but a frightening inability of courts to assess them." In the past two decades, scholarship on the economics of predatory pricing has evolved from the relatively settled consensus in which predatory pricing was thought to be irrational, rarely tried, and even more rarely successful, to a point where much less is settled. Recent theoretical work emphasizing strategic theory has shown that predation can be rational, and empirical studies have presented evidence consistent with successful predation. In this sense, the economics of predatory pricing has moved closer to other areas of monopolization.

 

However, the legal response to predatory pricing, a relatively administrable and permissive rule based in part on the assumption that successful predation was rare, has remained relatively intact. While the recent economic literature may have eroded this basis for the adoption of permissive standards for predatory pricing, other reasons for adopting such a rule, based on the benefits of bright line rules that would be administrable by courts, still remain. Thus, even considering the recent advances in economic theory, it is unwise to minimize or ignore this underlying purpose of the Brooke Group rule.

Abstract:

Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court’s interpretation of the federal Constitution.  More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights.  Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the federal Supreme Court? That is the issue raised by the Court’s recent decision in Danforth v. Minnesota.  By a 7-2 vote, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions.  I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court’s interpretation of the federal Constitution.  The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.

 

Part I briefly describes the facts and background to Danforth.  In Part II, I provide a doctrinal justification for the Supreme Court’s decision.  It makes sense to allow state courts to provide more generous remedies than those mandated by the federal courts in cases where restrictions on the scope of remedies are not imposed by the Constitution itself, but are instead based on policy grounds.  State courts can legitimately conclude that these policy grounds are absent or outweighed by other considerations within their state systems, even if they are compelling justifications for restricting the scope of remedies available in federal courts.  State courts are in a better position to weigh the relevant tradeoffs in a state legal system than federal courts are.

 

Part III explains the potential policy advantages of allowing interstate diversity in remedies, most importantly inter-jurisdictional competition and an increased ability to provide for diverse citizen preferences and local conditions across different parts of the country.  The optimal remedy for a constitutional rights violation in New York may well be different from the optimal remedy for one that occurs in Mississippi.

Abstract:

In their book The Brethren: Inside the Supreme Court, Bob Woodward and Scott Armstrong tell a small but striking story of the racial insensitivity of Justice Harry A. Blackmun. It happened during the drafting and circulation of opinions in Flood v. Kuhn, the 1972 baseball antitrust case. As the story goes, when Blackmun circulated the first draft of his opinion in Flood, with its famously romantic introductory salute to the good old days of baseball and list of “celebrated … names” from the history of the game, the list of names was as segregated as the Topeka public schools in 1954. Blackmun had excluded African Americans from his list of baseball celebrities. It was only when pressed to do so by Justice Thurgood Marshall that he added black players to the list — Satchel Paige, Jackie Robinson, and Roy Campanella.

 

It has been said that this story from The Brethren “makes no sense,” but that is not enough to make it false. The Brethren accurately reports some pretty nonsensical behavior by people who worked at the Supreme Court during the period covered by the book (1969 to 1976). Moreover, the authors of The Brethren claim there is documentary proof of their story of Blackmun-versus-Marshall in Flood. Nevertheless, the story is false. The document from which the authors quote — Blackmun’s allegedly racially exclusive circulated first draft in Flood — does not exist and never did. Paige, Robinson, and Campanella were present in the first circulated draft and thereafter. And thus Marshall’s objection to the offending draft never occurred either. There was nothing to object to.

Abstract:

Underpaid federal judges have always had ways to increase their income. The first resort (other than quitting for some other, higher-paying job) is a law granting judges a raise. But reputable minds differ on the proper scale and form of judicial pay increases, and raises have been low and slow in coming. Individual judges have occasionally taken the initiative to top off the family budget, albeit with mixed results. Judges are, however, not the only ones who have stepped up. Members of the bar have sometimes professed a willingness to contribute to the sustenance of the bench. Which brings us to the Taney Fund. When Chief Justice Roger Taney died in 1864 he left a tiny estate and two daughters who were still his dependants. In February 1871, Taney's former colleagues noticed that his daughters had fallen on hard times. They held a meeting of the bar of the Supreme Court at which a committee was formed to raise funds to support the daughters. But the main purpose of the meeting probably was to build support for judicial salary increases, and it seems to have worked. In March 1871, a big salary increase for federal judges became law. Which brings us to the Judiciary Fund. According to the American Bar Association, judges are in bad shape these days - seemingly as bad as they were in 1871: Judicial pay has reached such levels of inadequacy that it threatens the quality of justice in our nation. In the spirit of '71, the modern bar should come to the aid of our federal judiciary. $44 million is the rough price of increases Congress is looking at now. The money is there. All that remains is a commitment to support the judiciary and a way to channel the money to the judges.

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This chapter surveys the legal and economic literatures on the antitrust analysis of tying arrangements and exclusive dealing contracts.  We review the analytical framework applied under U.S. antitrust law to tying, bundling and exclusive dealing arrangements as well as the existing theoretical and empirical literatures.

Abstract:

In the months that preceded President Clinton’s impeachment trial, observers in the media breathlessly reported the so-called “death struggle” between the President and Kenneth Starr. Distinguished academic commentators, such as Ronald Dworkin and Arthur Schlesinger, Jr., were equally overheated in their rhetoric, predicting that the President’s impeachment would shred the American constitutional fabric. Of course, Clinton was impeached, with no discernible unraveling of the regime. The immediate political stakes were high, to be sure, and both sides fought with energy—as a minor participant in the struggle, I can attest to that. But no lives, and very few persons’ liberty, were ever in jeopardy and, contra Dworkin and Schlesinger, the U.S. Constitution was safe throughout the ordeal. The impeachment trial of a sitting president is always a “crisis,” at least in the sense that it may herald a transfer of power. But in that sense every presidential election could equally be called a crisis.

 

There are crises, and then there are constitutional crises. For an illustration of the latter, let us retreat to the 1641 impeachment trial of King Charles I’s principal advisor, Thomas Wentworth, the Earl of Strafford. At stake in Strafford’s trial was nothing less than the future of English constitutionalism and limited monarchy: Would the Stuart kings enlarge the powers of the monarchy along French lines or would Parliament preserve, and even expand, its own powers and privileges? And, on a more personal level, whose head would fall—Strafford’s or that of his principal antagonist in the House of Commons, John Pym?

 

It was the stuff of riveting drama: The King attended every day of the month-long trial, crowds gathered each day to witness Strafford’s arrival in Westminster, and the city erupted in violence. Contrast this with the waning interest in the Lewinsky affair by the time of the Clinton impeachment trial in the United States Senate. One of the first lessons from history is that not every political crisis raises fundamental issues. I think it fair to conclude or simply posit that a constitutional crisis may be expected to excite widespread interest outside the academy. If this is accurate, an impeachment trial that sets off an avalanche of law review articles, but garners fewer than ten million television viewers, is not a constitutional crisis.

Abstract:

There are a several forces pushing on the law and economics (L&E) movement from different directions.  The authors exchanged perspectives on trends in economics, and in particular the increasing mathematical formalization of economics, and their implications for the future of L&E in legal scholarship.  The authors discuss strengths and weaknesses of the modern L&E movement, speculate as to where L&E might be headed in the future, and how potential pitfalls might be avoided.  The exchange between the authors took place at Truthonthemarket.com and the blog posts have been compiled into this essay.