Statutory Interpretation in the Roberts Court’s First Era: An Empirical and Doctrinal Analysis

Anita S. Krishnakumar

Volume 62, Issue 2, 221-296

This Article examines the Roberts Court’s statutory cases from its 2005–2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article’s approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court’s and individual Justices’ rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court’s statutory cases, highlighting discernable patterns in the individual Justices’ interpretive approaches. The Article makes two significant contributions to the field of statutory interpretation. First, it identifies an interpretive divide that seems to be doing significant work in the Roberts Court’s statutory cases—a divide that perhaps best can be described as one between “legal-landscape coherence” on the one hand, and “statute-specific coherence” on the other. “Legal-landscape coherence” refers to an interpretive approach that focuses on the legal framework surrounding the statute at issue and seeks the statutory construction that fits most coherently into the existing legal structure; while “statute-specific coherence” refers to an interpretive approach that focuses on the individual statute at issue and preferences the statutory construction that creates an internally consistent and coherent policy across like situations and across time. The Article maps out the Justices’ theoretical divide in detail and shows how the divide translates into stark empirical differences in the Justices’ individual rates of reliance on particular interpretive canons and tools.

This Article breaks new ground by uncovering an important difference in the form of practical considerations that different Justices tend to reference. Specifically, the Article demonstrates that the landscape-coherence Justices tend to focus on the administrability of an interpretation—that is, its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices tend to focus on the constancy of the policy effected by an interpretation—for instance, whether it fosters a consistent application of the statute over time, the arbitrariness of the policy created, and the justness of the interpretation. The Article concludes with two case studies illustrating how the Roberts Court’s interpretive divide operates in practice and with a discussion about the theoretical implications of the divide.

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From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System

Colleen V. Chien

Volume 62, Issue 2, 297-356

For years, high-tech companies have amassed patents in order to deter patent litigation. Recently, a secondary market for patents has flourished, making it more likely that patents that would otherwise sit on the shelf will end up in the courtroom. This Article explores the current patent ecosystem, which includes both “arms race” and “marketplace” paradigms, in depth. I distinguish “patent-assertion entities,” entities that use patents primarily to obtain license fees rather than to support the development or transfer of technology, from other types of non-practicing entities. I contrast the patent arms race, whose goal is to provide entities with the freedom to operate, with the marketplace, through which entities have leveraged their freedom to litigate. I detail the participation of product companies as well as non-practicing companies and their intermediaries in the marketplace, and trace the diverse “pathways” traveled by patents from a diversity of sources including failed startups and product companies like Micron, to entities like Round Rock and Intellectual Ventures.

Several implications follow. First, the failure of the patent arms race to deter lawsuits from patent assertion entities as well as practicing companies in certain cases means that defensive strategies must be reconceptualized to include new tactics—including prevention, disruption, and coordination—for securing freedom to operate. In addition, if stockpiles of unused patents patent continue to fall into the hands of patent-assertion entities, defensive patenting may ironically have the net effect of increasing, rather than decreasing, litigation risk. Second, conventional notions of patent value need to be revised. The same patent has a much greater “exclusion value”—which I define as the value likely to be extracted from the patent—when held by a patent-assertion entity rather than a company vulnerable to countersuit. A better understanding of what drives the exclusion value rather than the intrinsic value of a patent might help companies predict and potentially avoid technical areas where patent assertion is most likely. Finally, recent history suggests trying to change the system by changing patentee behavior directly, rather than only through legal changes, for example by encouraging quality patenting, improving coordination between patent defendants, and creating a nonprofit organization to accept patent donations in order to encourage companies to make their unused patents available to the public, rather than to patent-assertion entities.

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Stanley in Cyberspace: Why the Privacy Protection of the First Amendment Should Be More Like That of the Fourth

Marc Jonathan Blitz

Volume 62, Issue 2, 357-400

The 1969 case Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection applies solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it—whether in a package sent by mail, in a suitcase one is carrying to one’s house, or in a stream of data obtained through the Internet.

However adequate this narrow reading of Stanley may have been in the four decades since the case was decided, it is ill-suited to the twenty-first century, where the in-home cultural life protected by the Court in Stanley inevitably spills over into, or connects with, electronic realms beyond it. Individuals increasingly watch films not, as the defendant in Stanley did, by bringing an eight millimeter film or other physical copy of the film into their house, but by streaming it through the Internet. Especially as eReaders, such as the Kindle, and tablets, such as the iPad, proliferate, individuals read books by downloading digital copies of them. They store their own artistic and written work not in a desk drawer or in a safe, but in the “cloud” of data storage offered to them on far-away servers.

Thus, I argue that courts should revisit and revise their understanding of Stanley v. Georgia in the same way that Katz v. United States revised Fourth Amendment law in 1967—by holding that the privacy it protected is not limited to the physical boundaries of the home (as United States v. Olmstead had held in 1928) but covers wire-line communications and other electronic environments in which individuals have an expectation of privacy. This is not to say that the Court’s understanding of Stanley v. Georgia should be revised in precisely the same way. However, Stanley v. Georgia should, at a minimum, be extended to protect web-based interactions, where use of an electronic resource outside of the home, such as the Internet, is an integral component of the act of possessing, viewing, or reading cultural material.

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Restoring Equipoise to Child Welfare

Rebecca Aviel

Volume 62, Issue 2, 401-456

Since the Supreme Court’s widely criticized decision in DeShaney v. Winnebago County Department of Social Services, the principle that the Constitution affords no relief for a social worker’s failure to prevent harm to a child has been described as a “staple of our constitutional law.” Whatever might be said about this principle on its own terms, it produces very troubling incentives for social workers, who may still face constitutional tort liability when they act affirmatively to intervene in troubled families—the unjustified removal of a child from her parents’ custody, after all, is the sort of infringement proscribed by our Constitution’s charter of negative liberties. This Article is the first to argue that this imbalance should be taken into account in determining the level of immunity to which social workers ought to be entitled when their conduct is challenged in federal court. In a world where social workers cannot be held liable in federal court for leaving an endangered child in the care of her parents, it is unacceptable to allow social workers to face liability for wrongfully removing a child from a dangerous home. In this Article, I offer a reluctant defense of absolute immunity for social workers initiating child dependency proceedings, arguing that such immunity can correct a perilous imbalance.

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Reframing Antitrust in Light of Scientific Revolution: Accounting for Transaction Costs in Rule of Reason Analysis

Alan J. Meese

Volume 62, Issue 2, 457-530

This Article contends that modern rule of reason analysis, informed by workable competition’s partial equilibrium trade-off paradigm, is suitable for evaluating only a subset of agreements that may reduce transaction costs. The Article distinguishes between “technological” and “non-technological” transaction costs. Technological transaction costs entail the bargaining and information costs first emphasized by Ronald Coase, while non-technological transaction costs result from more fundamental departures from perfect competition, departures creating a risk of opportunism that accompanies relationship-specific investments.

Modern law does accurately assess restraints that may reduce technological transaction costs—costs that are analogous to the sort of production costs recognized by the trade-off model. However, this same methodology is poorly suited for analyzing restraints that may reduce non-technological transaction costs. In particular, the model treats nonrestraint price and output as a “competitive” baseline against which to measure a restraint’s impact. As a result, tribunals applying the trade-off model may misinterpret benefits of such restraints, such as increased investment and resulting higher prices, as exercises of market power. Given the baselines that courts use, a test focused on price or output will condemn many restraints that enhance welfare.

Several considerations explain courts’ failure to incorporate the lessons of transaction cost economics (“TCE”) when analyzing contracts that may reduce non-technological transaction costs. For one thing, the trade-off paradigm has shed light on important antitrust problems. Practitioners of a successful paradigm do not readily abandon it. Moreover, Coase’s seminal work on TCE focused exclusively on technological transaction costs analogous to ordinary production costs easily recognized within the trade-off paradigm. Furthermore, proponents of TCE actually embraced and refined the trade-off model for analyzing mergers producing technological efficiencies. Finally, lower courts have modified aspects of the modern rule of reason test, staving off anomalies that can undermine a paradigm’s support.

Courts should accordingly “reframe” their analysis, selecting a different baseline against which to measure the impact of restraints that may reduce non-technological transaction costs. That is, tribunals should ask whether the restraint produces higher prices (or lower output) compared to the prices or output that would obtain if the defendants made specific investments without a safeguard against opportunism. Such an approach would hold constant the other variables that influence price and output, thereby isolating the impact of the restraint simpliciter on market power and/or transaction costs.

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Note – Blowing the Whistle on Van Asdale: Analysis and Recommendations

Christopher Wiener

Volume 62, Issue 2, 531-558

This Note examines the state of whistleblower protection at the state and federal level. It focuses on the protection granted to whistleblowers of securities fraud under the Sarbanes-Oxley Act of 2002. Most courts considering the statute have required that the plaintiff have had both an objective and subjective belief that securities fraud had been committed. In 2009, the United States Court of Appeals for the Ninth Circuit decided Van Asdale v. International Game Technology. The court broke with the other circuits in not requiring the plaintiff-employees to have a subjective belief that a violation had actually occurred and, instead, conferred whistleblower protection where the plaintiff-employees merely believed that an investigation into possible securities fraud was warranted. This Note explores the implications of the Ninth Circuit’s standard and argues that it should be overturned. Instead of lowering the requirements to achieve protected status, this Note argues that an expansion of whistleblowing remedies would better effectuate the goal of rooting out securities fraud. Congress should act to change the whistleblower protection scheme, as piecemeal judicial manipulation would only exacerbate the problem. The Note concludes with an examination of the whistleblower protections contained in the Dodd-Frank Act, arguing that the changes failed to correct the underlying structural problems with the federal whistleblower protection system.

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Note – The Un-Creation of Rights: An Argument Against Administrative Disclaimers

Josephine K. Mason

Volume 62, Issue 2, 559-596

Boilerplate disclaimers appear with some frequency in administrative regulations, yet there has been a striking absence of discussion as to their validity. This Note argues that administrative disclaimers threaten two key constitutional concerns inherent in administrative law—proper government structure and fairness to individuals—and that courts should therefore approach administrative disclaimers with a high degree of skepticism.

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New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women

Joan C. Williams and Veta Richardson

Volume 62, Issue 3, 597-676

This Article reports on a survey of 694 law firm partners, virtually all women, who filled out an online survey about the impact of law firm compensation systems on women. The results were analyzed through the lens of thirty-five years of experimental social psychology studies of gender bias. Survey results showed considerable dissatisfaction among women partners with respect to their firms’ partner compensation systems. Thirty to forty percent of respondents were dissatisfied or extremely dissatisfied with their firm’s system, and minority partners were more dissatisfied than majority ones. Many respondents believed that their firms overvalued individual cash flow factors (origination, revenue and billable hours) and undervalued institutional investment factors (contributions to enhance the firm’s human capital), and that the systems lacked transparency. Disputes over origination credit were very common, with minority attorneys more likely than majority ones to experience them. About a quarter of majority equity women partners, and a third of majority income and minority women partners reported feeling “bullied, threatened or intimidated” in a dispute over origination credit. Respondents’ reported experiences track patterns of gender bias as described in the experimental literature. The Article ends with an extensive list of best practices to help firms address the problems identified in law firm compensation systems.

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Resolving Client Conflicts by Hiring “Conflicts Counsel”

Ronald D. Rotunda

Volume 62, Issue 3, 677-706

A general principle of legal ethics is that a law firm may not represent a client suing someone who is also a client of the law firm (1) even though the two matters are unrelated, (2) a different law firm represents the client in that law suit, and (3) there is no risk that the lawyer would violate the confidences of any client. Other ethics rules magnify the significance of this rule by imputing the disqualification of every lawyer in the law firm to every other lawyer in the same firm. Courts enforce these rules by disqualifying the offending law firm.

In general, sound reasons support these ethics rules. Yet, there are situations where these rules require disqualification although there is no legitimate client expectation of loss of loyalty or confidence. There is nascent case law in the lower courts that recognizes this problem and offers a solution: using what I call “conflicts counsel,” meaning that the client retains a new lawyer from a different law firm to handle a discrete, severable matter—the matter that created the conflict. Although these cases— typically in the area of discovery and bankruptcy—do not discuss their rationale, their instincts are correct: using conflicts counsel in certain situations mitigates the burden of disqualification while protecting the underlying reasons behind disqualification. Courts should follow these decisions, which are typically unpublished.

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How Different Are Originalism and Non-Originalism?

Peter J. Smith

Volume 62, Issue 3, 707-736

Several prominent and self-described “new originalists” have begun to contend that the objective original meaning of many of the Constitution’s provisions should be ascertained at a very high level of generality. They have also urged recognition of a distinction between constitutional “interpretation,” which involves the determination of the meaning of the constitutional text, and constitutional “construction,” which involves the formulation of legal rules to apply the text to concrete situations. These scholars have noted that because the constitutional text often is phrased at a very high level of generality, originalist interpretation alone simply cannot answer many difficult questions of constitutional law, and thus courts must formulate rules that are not themselves dictated by the original meaning.

If this is what originalism entails, then there is no obvious distinction, at least in practice and possibly in theory, between new originalism and non-originalism. After all, most non-originalists treat the original meaning as the starting point for any interpretive inquiry, but are willing to look elsewhere—to history, precedent, structure, and policy, among others—to construct constitutional meaning when the text is vague or indeterminate.

All of this naturally leads one to question how different originalism and non-originalism really are. The short answer is that it depends on whom we ask, because not every originalist—indeed, not even every “new originalist”—accepts these recent modifications to originalist thinking. Given modern originalism’s origins as a response to the perceived excesses of non-originalism, it is not surprising that many originalists have resisted refinements to the theory that would tend to collapse the distinction between originalism and non-originalism. But the growing rift among originalists poses a greater risk to originalism than the mere prospect of intramural disagreement. Much of the force of the case for originalism has long derived from its claims to neutrality and objectivity. As the originalist tent grew, embracing scholars with a broad range of substantive commitments, these claims became perhaps more plausible. But originalists’ rejection of the claims of the “new new originalists”—claims that follow quite naturally, even if not inevitably, from the important refinements of new originalism itself—and their continuing insistence on an approach to constitutional interpretation that usually produces substantively conservative results have threatened once again to undermine their claims to neutrality and objectivity.

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