Postscript is an online companion to the Southern California Law Review that permits us to publish a wider variety of worthwhile material than we can accommodate in our printed journal. We seek to publish a wide range of timely legal commentaries, response pieces, book reviews, and student work.
2020 – 2021
Since 2015, state Anti-Strategic Lawsuits Against Public Participation (“anti-SLAPP”) laws that were enacted to prevent litigious plaintiffs from silencing a defendant’s First Amendment rights have come under attack from state and federal courts. California Civil Procedure § 425.16 (“§425.16”), California’s anti-SLAPP law, is particularly susceptible to this judicial narrowing, as it is widely considered the broadest anti-SLAPP statute in the country. Indeed, the California Supreme Court in the 2019 case FilmOn.com Inc. v. Double Verify Inc. narrowed § 425.16’s applicability by articulating a stricter context-based standard for protected conduct under the statute’s catchall subdivision, § 425.16(e)(4).[3
This Article argues that this stricter standard is unwarranted in light of § 425.16’s legislative intent, previous California Supreme Court § 425.16 rulings, and the reasonable protections built in to § 425.16 for plaintiffs. Moreover, the court’s underlying frustration with § 425.16 overuse will likely be exacerbated, not ameliorated, by this stricter standard. Additionally, the vulnerable defendants § 425.16 was intended to help, in particular online watchdogs, will likely suffer the most under this stricter standard. This Note concludes that the California Legislature should act to clarify § 425.16(e)(4) or risk continued judicial efforts to narrow its applicability and potentially thwart its legislative purpose.
The United States patent system has long been considered the gold standard of global patent systems, in part because of the consistency and strength of the protections that it has granted to inventors.1 The rapid growth of the United States economy during the nation’s early years is often attributed in part to the patent system adopted by the country,2 and the strength of the United States patent system allows the United States to remain among the world’s most innovative countries despite falling behind other countries in areas relevant to innovation such as higher education and researcher concentration.3 A hallmark of a strong patent system is predictability.4 “In a strong patent system, patent rights are granted to particular inventions in a predictable manner, and patent infringement similarly is enforced in a predictable manner.”5 This predictability reinforces the strength of the patent system by allowing inventors to protect their inventions and efficiently allocate resources for future innovation.6
Until relatively recently, the rules regarding patent eligible subject matter were clear and predictable—courts and the United States Patent and Trademark Office, or USPTO, should interpret subject matter eligibility requirements broadly.7 This expansive subject matter eligibility interpretation was widely criticized as resulting in patents that were both too broad and too vague, 8 which resulted in the judiciary revisiting the issue of patent subject matter eligibility in a series of cases culminating in Alice Corp. Proprietary Ltd. v. CLS Bank International.9 In Alice, the Supreme Court reified a two-step analytical framework for patent subject matter eligibility.10 This framework, which was established in part to clarify patent-eligible subject matter, has been heavily criticized as being “chaotic,” a “real mess,” and even putting patent subject matter eligibility into a “state of crisis.”11 The application of this framework has proven to be “unpredictable and impossible to administer in a coherent consistent way.”12
In the years since Alice, there has been much legal scholarship and research regarding how to resolve the ambiguity surrounding patent subject matter eligibility, but nothing has successfully resolved the issue in practice. In January 2019, the USPTO promulgated guidance on the issue of patent subject matter eligibility.13
This Note will begin by providing a brief discussion of patent subject matter eligibility. Next, the Note will discuss the January 2019 Guidance promulgated by the USPTO and how the Guidance aims to alter the two-step analytical framework from Alice, before assessing whether this Guidance has appeared to have any substantial effect on the federal judiciary in the first year since the Guidance was promulgated.
Postscript | Securities Law
Crypto-Enforcement Around the World
by Douglas S. Eakeley & Yuliya Guseva with Leo Choi & Katarina Gonzalez, Rutgers Center for Corporate Law and Governance, Fintech and Blockchain Research Program
The market for cryptoassets is burgeoning as distributed ledger technology transforms financial markets. With the extraordinary growth in the crypto-markets comes the need for regulation to promote efficiency, capital formation, and innovation while protecting investors. With the need for regulation comes enforcement. The blockchain revolution in capital and financial markets has already attracted the attention of enforcement agencies in many jurisdictions. In this Article, we elaborate on crypto-related enforcement and report on the results of the Enforcement Survey conducted by the Rutgers Center for Corporate Law and Governance Fintech and Blockchain Research Program.
We find that the United States Securities and Exchange Commission (“SEC” or “Commission”) brings more enforcement actions against digital-asset issuers, broker-dealers, exchanges, and other crypto-market participants than any other major crypto-jurisdiction. By the same token, its enforcement entails more serious penalties. In addition to reviewing the international data, we provide detailed comparisons of the crypto-enforcement actions of the United States Commodity Futures Trading Commission (“CFTC”) and the crypto-enforcement program of the SEC. Whereas SEC enforcement has been relatively stable, CFTC cases have been trending up. By contrast, enforcement in foreign jurisdictions seems to be subsiding. Our data raise theoretical questions on regulation via enforcement, its effect on financial innovation, and regulatory competition.
In Part I, we start with discussing the pros and cons of regulation by enforcement, as well as its consequences for innovation and a possible outflow of capital. Part II describes the methodology of the research. Part III presents the main findings. Parts IV and V discuss SEC and CFTC enforcement data, respectively, while Part VI compares the enforcement actions of the two regulators.
When a student misbehaves, race plays a role in how harshly the student is disciplined. Given the long history of racial discrimination in the United States, as well as prevalent implicit biases, Black and Latino students are disciplined at higher rates with stiffer punishments than their white peers. This higher level of discipline leads to a downward spiral of poor school performance and attendance, involvement in illegal activity, and arrest and imprisonment. Ultimately, Black and Latino students fall victim to a school-to-prison pipeline that many white students are not pushed into despite similar misbehavior. In order to protect students from the pipeline, equalize educational opportunities, and create a safe and welcoming school environment, it is necessary for the federal government to invalidate disciplinary policies that cause an unjustified, disparate impact.
Under President Obama, a first-ever policy guidance on student discipline was issued, which stated that not only are intentionally discriminatory policies unlawful per Title VI of the Civil Rights Act of 1964, but so too are facially neutral policies that cause an unjustified disparate impact. The Trump Administration rolled back the policy guidance, citing that a disparate impact policy is not a Title VI violation per current precedent and that invalidating disparate impact disciplinary policies makes schools less safe and more prone to shootings. This Note will examine those arguments and will conclude that the disparate impact standard is supported by current precedent, does not increase the rate of school shootings, and ultimately should be reinstated. The disparate impact standard is a necessary safeguard against negative, implicit attitudes and is an important step in eradicating the school-to-prison pipeline.
Unitary executive theory endorses a shift in the balance of powers away from the courts and Congress and towards the President. Opposition to that shift should be bipartisan. Conservatives decried President Obama’s unilateral actions, and now progressives bemoan President Trump’s. The President should not be permitted to act as Supersecretary in Chief, lest the growing power of the presidency destroy our democratic republic.
In the absence of direct opposition to the growth of presidential power, however, the APA provides a second-best alternative. Treating the Supersecretary in Chief like an “agency” under the APA would partially alleviate the constitutional problems with the President supplanting Congress’s statutory delegates. It also would enhance public participation, political accountability, transparency, deliberation, and uniformity, leading the President to make better decisions. That is in every American’s interest.
In this Note, I offer a summary, a realization, a conclusion, and an explanation: a summary of what I found to be the most convincing arguments of each side, noting both the plaintiffs’ and defendant’s efforts to characterize history as uniquely supporting their favored interpretation; a realization of the impossibility of perfect historical consistency in any interpretation; a conclusion that in light of unavoidable historical inconsistency, the Foreign Emoluments Clause does indeed apply to President Trump’s hotel revenues; and an explanation of one possible way to view the inconsistent application of the clause in view of my conclusion that it does apply. Under my proposed view, the fact patterns of all the introductory stories fall within the scope of the Emoluments Clause(s)13—they are all “emoluments” under the broad definition—but the difference in the propriety of the behavior is based primarily on what is outside the fact patterns: the appearance of the possibility of corruption. The reason these cases are being brought against the forty-fifth president and not the first has much more to do with the perception of who the presidents were and are, and the public’s corresponding intuitive sense of the possibility of corruption. This understanding is one possible explanation of how Washington could purchase land at a public auction designed to raise funds for the founding of the new capital without raising flags, but Trump cannot similarly lease hotel space from the government and avoid scrutiny.
This Essay is not designed to rehash or resolve the questions regarding whether we are polarized or less civil in our discourse than in times past, nor is it intended to propose specific solutions. Instead, it is designed to add Alexander Hamilton to the discussion and to remind readers about the lessons he had when polarized politics surrounding the discussion on the necessity and framing of the U.S. Constitution risked uncivil discourse at the Founding.
August 31, 2020
In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues. We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.
June 30, 2020
This is a perfect juncture for analyzing 2021 federal judicial clerkships. Many aspirants recently finished half of their legal education. Six appeals courts’ members have agreed to honor a new Federal Law Clerk Hiring Plan (hereinafter referred to as “the pilot”) that is currently in its second year. The pilot directly proscribes seeking and permitting clerkship applications and recommendation letters until June 15, 2020 and prohibits student clerkship interviews and judicial offers before June 16, 2020.1 However, certain judges within these six tribunals will not respect the pilot during its second year, even though jurists in the seven remaining courts of appeals might follow the new plan. The Administrative Office of the United States Courts (“AO”) extended 2L students OSCAR access in February while suspending in January 2014 the 2003 clerk hiring plan—whereby 3L employment began near Labor Day—and judges will soon consider aspirants. Clues offered below may assist prospects in securing the coveted positions which start in 2021.
June 7, 2020
2019 – 2020
United States enforcement of the Foreign Corrupt Practice Act’s (“FCPA”) anti-bribery statutes has been scrutinized since Jimmy Carter signed it into law in 1977. The FCPA has an extraterritorial jurisdictional reach, meaning its provisions can apply to individuals outside of the United States. But how far did Congress intend to expand the FCPA’s jurisdiction? How far should we extend extraterritorial jurisdiction of our anti-bribery statutes? What is the proper boundary between enforcing American law and respecting foreign sovereignty? This Article examines these questions through the lens of United States v. Hoskins, a recent Second Circuit case.
April 29, 2020
This Note will argue that Trump v. Hawai’i was decided correctly, but that the consequences of the decision as they relate to expanding executive power and the case’s procedural history have serious implications for the future of judicial lawmaking. This Note will critically analyze arguments on both sides of the issue of whether nationwide injunctions should be prohibited. Additionally, this Note argues that while nationwide injunctions have positive effects, those effects are outweighed by the incentives they create for forum shopping and the judicial territorial clashes they create that undermine judicial decisionmaking. Finally, this Note argues that prohibiting nationwide injunctions entirely, as the Injunctive Authority Clarification Act would have done, is not the proper solution. Instead, nationwide injunctions should be limited in some way, such as allowing only district- or circuit-wide injunctions.
April 20, 2020
This paper argues that doing so would unconstitutionally force individuals to choose between criminal prosecution or banishment. Part I of this paper will briefly provide an overview of homelessness in the United States, particularly in California, and place the Manhattan Beach ordinance within the various laws and practices localities have implemented in response to the rise of homelessness. Part II will examine the use of banishment in criminal law and explore various challenges to such conditions. Finally, Part III will demonstrate that Manhattan Beach’s ordinance and planned enforcement constitute banishment and are invalid for many of the same reasons courts have used to invalidate conditions of banishment imposed in criminal law.
April 13, 2020
[T]his Article…highlights a number of largely unsolvable problems in trying to delimit the scope of the Commerce Clause power. There is, merely to begin, the problem of the vagueness of legal language in general and of the key terms embodied in the Commerce Clause more specifically. The vagueness problem impairs attempts to clarify the meaning and bounds of the language of the Commerce Clause.
December 7, 2019
This Article articulates the downsides to treating climate change as a national security issue and demonstrates how the U.N.-mandated concept of “human security” provides a more effective framework. Human security realizes the benefits of securitization while lessening its costs. It does so by focusing on people, rather than the state, and emphasizing sustainable development policies necessary to mitigate, rather than just acclimate to, climate change. While explored here in detail, these arguments are part of a larger, ongoing project examining how the human security paradigm can generate more effective legal solutions than a national security framework for global challenges, like climate change.
November 19, 2019
Postscript | Criminal Law
An Uneasy Dance with Data: Racial Bias in Criminal Law
by Joseph A. Avery
Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking…Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions…Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.
June 19, 2019
Postscript | Election Law
Technology-Enabled Coin Flips for Judging Partisan Gerrymandering
by Wendy K. Tam Cho
Akin to every other legal issue that comes before the Court, reconciling the state’s discretion and the Supreme Court’s role in judicial review requires a judicially manageable standard that allows the Court to determine when a legislature has overstepped its bounds…In the partisan gerrymandering context, such a standard needs to discern between garden-variety and excessive use of partisanship. The Court has stated that partisanship may be used in redistricting, but it may not be used “excessively”…At oral argument in Rucho, attorney Emmet Bondurant argued that “[t]his case involves the most extreme partisan gerrymander to rig congressional elections that has been presented to this Court since the one-person/one-vote case.” Justice Kavanaugh replied, “when you use the word ‘extreme,’ that implies a baseline. Extreme compared to what?” Herein lies the issue that the Court has been grappling with in partisan gerrymandering claims. What is the proper baseline against which to judge whether partisanship has been used excessively? And how can this baseline be incorporated into a judicially manageable standard?
May 30, 2019
In a 2017 Virginia Law Review article, The Untenable Case for Perpetual Dual-Class Stock, Professors Lucian Bebchuk and Kobi Kastiel argued that time-based sunset provisions (the forced unification of shares into one share structure with equal voting rights after a certain period of time) should be a mandatory feature of dual class share structures (classes of common stock with unequal voting rights). This article has recently been used as authority by the Council of Institutional Investors (“CII”) to petition to the NASDAQ Stock Market (“NASDAQ”) and the New York Stock Exchange (“NYSE”) to amend their listing standards. The requested amendments would require companies seeking to go public with dual class shares to include in their certificates of incorporation a time-based sunset provision that would go into effect no more than seven years after the initial public offering (“IPO”) unless minority shareholders vote to extend it up to an additional seven years. This delayed unification based on a shareholder vote is incorporated in Bebchuk and Kastiel’s argument.
April 24, 2019
At President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit faced ample vacancies that the United States Courts’ Administrative Office labeled “judicial emergencies” because of their protracted length and its huge caseload. Recent departures by Circuit Judge Stephen Reinhardt and former Chief Judge Alex Kozinski, who occupied California posts, and other jurists’ decision to change their active status mean that the circuit has five emergencies, three in California, because Trump has appointed only three nominees. The court also resolves the most filings least expeditiously.
Postscript | Intellectual Property Law
Crushing Creativity: The Blurred Lines Case and Its Aftermath
by Edwin F. McPherson
On March 10, 2015, the music world was stunned when a jury in Federal District Court in Los Angeles rendered a verdict in favor of the heirs of Marvin Gaye against Pharrell Williams and Robin Thicke, who, along with rapper Clifford Harris, Jr., professionally known as “T.I.,” wrote the 2013 mega-hit song entitled “Blurred Lines.” The eight-member jury unanimously found that Williams and Thicke had infringed the copyright to Marvin Gaye’s “Got To Give It Up.” On appeal, the Ninth Circuit Court of Appeals affirmed the verdict and recently rejected Williams and Thicke’s Petition for Rehearing en banc.
Richard Fallon has written another important book about American constitutional law. Indeed, it brings to mind Hilary Putnam’s definition of a classic: the smarter you get, the smarter it gets. Fallon presents a rich, thick description of our constitutional law and practice and an argument for how we may best continue and improve this practice. While intended to be accessible to a broad readership, Fallon’s arguments cut to the core of much current constitutional scholarship, even while urging us to move past many of these sterile debates. Most importantly, Fallon takes seriously his mission of speaking to the Court, as well as to the academy, and takes a real run at changing how the Justices decide cases and articulate their decisions. He accomplishes all of this in a startlingly concise book, running only 174 pages of text and 36 pages of notes and without even a subtitle.
In the midst of growing debate and—according to widely publicized news accounts—growing evidence against President Donald Trump’s impeachment, esteemed former Harvard Law Professor and public intellectual, Alan Dershowitz, recently published The Case Against Impeaching Trump. In this brief, but passionate, defense of the President, Professor Dershowitz provides arguably the strongest legal argument against impeaching the Forty-Fifth President of the United States. Professor Dershowitz’s argument, while beautifully written, is largely a selectively applied textualist attempt to thwart the mounting evidence against President Trump and his administration.
Postscript | Constitutional Law
Supreme Court Reform: Desirable–And Constitutionally Required
by David Orentlicher
As decisions by—and appointments to—the Supreme Court have become increasingly divisive, many observers have renewed calls for reform. For example, we could replace lifetime tenure with non-renewable terms of eighteen years, such that one term ends every two years. That way, less would be at stake with each nomination, Justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.
Amidst the backdrop of a federal investigation into the actions of President Donald Trump, a previously unexplored legal question has emerged on a topic that forms the foundation of legal practice: Can a succeeding government official revoke a predecessor’s claim of the attorney-client privilege? Although the question is novel, its role within the government context is well established—having been asserted by Presidents Richard Nixon and Bill Clinton in their respective administrations. The context of current events, however, underscores the need to further define the operation of a privilege that is once again being relied upon by a president under investigation.
We are now some twenty years into the story of the Internet’s bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry’s excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strategies more recently employed to avoid law using the Internet in some way. While Pollman and Barry’s article stands on its own, I write this Article to connect these two periods. I also wish to offer a slightly different normative assessment of the legal avoidance efforts described here, along with my opinion as to how law enforcement should conduct itself in these situations.
On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online.
Postscript | Litigation
“Fair, Reasonable, and Adequate” According to Who? Cy Pres Distributions That Result in Cheap Settlements and Generous Attorney Fees, but No Financial Benefit to Class Members
by Linda Sandstrom Simard
In her recent article, Professor Rhonda Wasserman argues that class action settlements that distribute funds cy pres raise a very serious risk of prejudice to absent class members. The problem, she asserts, is the temptation for class counsel to sell out the interests of absent class members in exchange for a discounted settlement for the defendant and a generous fee for class counsel. To illustrate her concern, she cites the $9.5 million settlement in Lane v. Facebook, Inc. that directed approximately $6.5 million to a nascent charity that was controlled—at least partially—by the defendant, $3 million to class counsel and nothing to the three million absent class members. Professor Wasserman argues that courts cannot have a laissez faire attitude toward protecting absent class members and she proposes a number of procedural reforms to ensure that cy pres distributions are only used when absolutely necessary. While her proposals are likely to provoke increased judicial scrutiny of cy pres distributions, the article stops short of addressing the principal question: when, if ever, is a settlement that distributes funds cy pres “fair, reasonable and adequate” to the absent class members?
This Note will first review the historical development of gun-control laws in the United States, including those referred to by the Supreme Court as “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” It will then analyze the extent to which the SAFE Act differs from such longstanding prohibitions and whether the Act is constitutional. Finally, this Note will consider whether, regardless of its constitutionality, the SAFE Act is an appropriate legislative response to gun violence or whether a recent proposal by a group of national experts on mental illness and gun violence might be more effective and more likely to pass constitutional muster.
Steven Schwarcz’s “Ring-Fencing” gets much of its impact from its broad definition of the term, which is usually heard these days when thinking about whether a multinational bank ought to be forbidden from removing the assets of its branches in one country to support its activities in another.
One of the singular contributions of the article lies in its willingness to look beyond that use of the term to think about what ring-fencing means more broadly and conceptually. As Schwarcz observes, ring-fencing is nothing less than a way to allocate resources, regulate firms, and reassure stakeholders that could be applied any enterprise. The ring-fencing metaphor posits the separation of assets within a firm—some are inside the ring fence, and others are not. To Schwarcz this amounts to “legally deconstructing a firm in order to more optimally reallocate and reduce risk,” which could include any restructuring involving holding companies, off-balance sheet entities, and even the creation of corporate subsidiaries.
In Ring-Fencing, Professor Steven Schwarcz provides an insightful overview of the concept of “ring-fencing” as a “potential regulatory solution to problems in banking, finance, public utilities, and insurance.” As Professor Schwarcz explains, “ring-fencing can best be understood as legally deconstructing a firm in order to more optimally reallocate and reduce risk.” Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also referred to herein as “universal banks”). Professor Schwarcz describes several ring-fencing plans that have been adopted or proposed in the United States, United Kingdom, and European Union.
This Comment argues that “narrow banking” is a highly promising ring-fencing remedy for the problems created by universal banks. Narrow banking would strictly separate the deposit-taking function of universal banks from their capital markets activities. If properly implemented, narrow banking could significantly reduce the safety net subsidies currently exploited by large financial conglomerates and thereby diminish their incentives for excessive risk-taking.
Envision living with the constant fear of being tortured or killed for no other reason than having a different political opinion than those in power. While that may be difficult to imagine for those who live in the United States, unfortunately, many around the world must live with that fear or flee from their homes. That fear has mobilized an estimated 11,000 to 15,000 refugees to flee from Syria. The mass exodus followed Syrian President Bashar al-Assad’s siege of the western city of Homs, which is “the heart of an 11-month uprising against his rule.” In those early months of violence, only around 7000 Syrian refugees had registered with the United Nations High Commissioner for Refugees (“UNHCR”). However, given the persistent violence and the recent allegations that President al-Assad has used chemical weapons on or near civilian populations, it is unsurprising that current UNHCR projections estimate that there are over two million Syrian refugees. And according to the UNHCR, if current trends persist, there may be well over three million Syrian refugees by the end of 2013.
Postscript | Criminal Law
Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions
by Eve Brensike Primus
Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.
Natapoff amasses an impressive amount of data and material to explain both the prominence of misdemeanor convictions in our justice system and the many problems with how our misdemeanor system operates. She rightly points out that legislative overcriminalization coupled with conflicting police responsibilities and vast police discretion has created a system in which poor people of color are routinely arrested for misdemeanor offenses even when there is little evidence to support their arrests.
Natapoff draws on her experience in criminal defense to explore how far out of sync the ideal of adversarial due process is from the reality of cookie-cutter dispositions. She trenchantly explains how many low-level cases depend almost entirely on a police officer’s word, with no meaningful prosecutorial screening or defense counsel testing, or even no defense counsel at all.
Postscript | Criminal Law
Misdemeanor Injustice and the Crisis of Mass Incarceration
by Jonathan Simon
Every generation it seems, a criminal law scholar arises like an Old Testament prophet and attempts to compel their colleagues to confront the uncomfortable fact that the kind of criminal justice the overwhelming majority of their fellow citizens experience involves misdemeanor crimes, adjudicated (if you can call it that) at the lowest level of courts, with little or no lawyering, few rules, and lots of scope for nasty prejudice. For this generation, Alexandra Natapoff is that Jeremiah. For her, it is bad enough, of course, that most felony justice has only a family resemblance to the picture acquired from most criminal law classes, but misdemeanors, if they show up at all, do so in the margins of the course, around issues like status offenses, voluntariness, or possession. When we take Natapoff’s challenge and treat the world as if these misdemeanors mattered, we experience something like what the filmmakers of the Matrix series so effectively captured: the slide from a sleek but apparently totally fake world, to one that is actually pretty disgusting and degrading.
In his 2012 article, Revisiting the Revisionist History of Standard Oil, Christopher Leslie takes issue with John McGee’s work on predatory pricing and its influence on antitrust law and scholarship. Leslie claims McGee’s analysis was methodologically flawed, ideologically motivated, but ultimately successful in “distorting” predatory pricing law by persuading courts to adopt a standard too permissive of anticompetitive predation. Holding aside the specific methodological critique of McGee’s analysis, in this paper I demonstrate that Leslie’s claim that McGee distorted predation law fails for a number of reasons. The most fundamental reason is that Leslie does not consider the likely counterfactual antitrust world without McGee’s analysis. Specifically, Leslie does not consider the very likely alternative explanation for the decline in plaintiffs’ success in predation cases–namely, Phillip Areeda and Donald Turner’s seminal 1975 analysis. Whether debates continue within the economics literature regarding the details of McGee’s contribution to our understanding of predatory pricing theory and the Standard Oil saga, there is scant evidence supporting Leslie’s primary claim that McGee has had a distorting influence that has induced courts to adopt permissive attitudes toward anticompetitive predation. Nor is there evidence in the economics literature supporting Leslie’s ancillary claim that current law underdeters anticompetitive predation. A proper understanding of the intellectual foundations of modern predation doctrine reveals a doctrine far more stable and durable than Leslie implies.
Postscript | Antitrust Law
Determining the Optimal Antitrust Standard: How to Think About Per Se Versus Rule of Reason
by Abaraham L. Wickelgren
Andrew I. Gavil presents a thoughtful and illuminating portrait of the evolution of the rule of reason in United States antitrust law since Standard Oil. While the rule of reason, as initially embodied in Standard Oil Co. v. United States and Board of Trade of Chicago v. United States (“Chicago Board of Trade”), may have once been an invitation to make any and all arguments about the competitive nature of a given restraint, Gavil rightly points out that this is no longer the case. As currently employed, the rule-of-reason analysis is typically quite structured. The plaintiff must first show that the defendant’s action had an anticompetitive effect. If she can do this, then the defendant has the burden to prove that its action has a procompetitive benefit. If, and only if, the court finds that both sides have met their initial burden, will the court proceed to balance the two effects.
Of course, the evidence of anti- and procompetitive effects for any particular conduct is always far from perfect. Whenever evidence is imperfect, we know from decision theory (Bayes’ rule) that one’s prior beliefs about the plausibility of anti- or procompetitive effects will be important (and will be more important the less perfect the evidence). Thus, one can think of the per se rule in antitrust as just an extreme form of the rule of reason, in which the court’s prior beliefs dictate the decision. For example, a court’s prior belief that price-fixing is anticompetitive may be so strong that the evidence required to overcome that prior belief (establishing a procompetitive effect on balance) would have to be enormously powerful. One way to express the justification for the per se rule is that the probability that such evidence will exist is so small that it is not worth examining it. In that light, one can also view the structured rule of reason approach as one that should (although, in practice may not) reflect a similar paradigm in less extreme cases: we require stronger evidence of anticompetitive effects for conduct that we think are less likely to be anticompetitive and are more receptive to procompetitive effects arguments in such cases.
Postscript | Antitrust Law
Tarring the Trust: The Political Economy of Standard Oil
by Michael Reksulak & William F. Shughart II
It has been well established in the economics literature that the antitrust laws have been used strategically to undermine the competitive market process, whether the alleged abuses were based in fact or not. It should, then, come as no surprise that the origins of one of the most famous decisions in antitrust jurisprudence, the 1911 judgment by the Supreme Court against Standard Oil, can be traced back to an alliance of rivals that had seen their business interests hurt by John D. Rockefeller, Sr.’s innovative entrepreneurship. In fact, the judgment seemed to confirm early fears attributed to “[m]ost economists in the late 19th century . . . [that] the law would impede attainment of superior efficiency promised by new forms of industrial organization.” Others concluded later that “the enforcement of the Sherman Act over the past 95 years has probably reduced industrial competitiveness.”
On that occasion more than a century ago–an event that has been called “the mother of all monopolization cases”–the Court decided unanimously (with Justice Harlan concurring in part and dissenting in part ) that the U.S. government had the right to impose “broader and more controlling remedies,” including the dissolution of an entire corporate entity, in announcing that they henceforth would apply a “rule of reason” in evaluating alleged antitrust law violations.
Even its more stalwart defenders are concerned that capitalism is in crisis. Alan Greenspan conceded a “flaw” in his free-market beliefs. The Financial Times, in 2012, invited Arundhati Roy and Occupy Wall Street to share a dialogue with high-level officials and leading economists over the crisis in capitalism.
The crisis in capitalism might have come as a shock to some, but not to many middle- and lower-income households. Well before 2008, middle-class Americans saw little gains in income, despite gains in productivity. When mass unemployment came, the middle class shrank further. America’s social net, U.S. Senator Bernie Sanders described in his historic speech, is threadbare. America’s infrastructure is crumbling. Primary and secondary education for many families is inadequate. Incarcerations, home foreclosures, underwater mortgages, the number of people in poverty, and the public’s dissatisfaction with Congress are at record highs. With America’s debt in the trillions of dollars, a larger fiscal crisis looms. Many Americans in 2012 were dissatisfied with the United States’ moral and ethical climate (68 percent surveyed), the federal government’s size and power (69 percent), and the state of America’s economy (83 percent). Given the dissatisfaction, it is a wonder why more people are not protesting.
In September 2010, Iranian engineers detected that a sophisticated computer worm, known as Stuxnet, had infected and damaged industrial sites across Iran, including its uranium enrichment site, Natanz. In just a few days, a sophisticated computer code was able to accomplish what six years of United Nations Security Council resolutions could not. Not a single missile was launched, nor any tanks deployed, yet the computer worm effectively set back the Islamic Republic’s nuclear program by two years and destroyed roughly one-fifth of its nuclear centrifuges. The worm itself included two major components. One was designed to send Iran’s nuclear centrifuges spinning out of control, damaging them. The other component seemed right out of the movies; “the computer program . . . secretly recorded what normal operations at the nuclear plant looked like, then played those readings back to plant operators, like a pre-recorded security tape in a bank heist, so that it would appear that everything was operating normally while the centrifuges were actually tearing themselves apart.”
Responding to Courtney G. Joslin, Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology, 83 S. Cal. L. Rev. 1177 (2010).
In her article, Courtney G. Joslin persuasively argues that the children born via assisted reproductive technology (“ART”) are placed at a serious financial disadvantage under the law. Joslin is right to point out that parentage provisions that apply only to children born to heterosexual married couples disadvantage nonmarital children of ART financially as well as emotionally and developmentally. Joslin’s solution is to propose extending to such children what she terms the “consent = legal parent” rule, meaning that “any individual, regardless of gender, sexual orientation, or marital status, who consents to a woman’s insemination with the intent to be a parent is a legal parent of the resulting child.” Such a rule removes a period of time during which a child is unprotected by the lack of legal recognition of a parent. This response identifies an ambiguity in and proposes a clarification of Joslin’s consent = legal parent rule with regard to conception, and with regard to consent during the period after conception and before birth.
Postscript | Constitutional Law
Can Congress Make You Buy Broccoli? And Why It Really Doesn’t Matter
by David Orentlicher
Critics of the individual mandate to purchase health care insurance make a simple but seemingly compelling argument. If the federal government can require people to buy insurance because that would be good for their health, then the government can require people to buy all sorts of things that are good for their health, like broccoli or membership in an exercise club.
To avoid the prospect of the ultimate nanny state, U.S. district court judges in Florida and Virginia concluded that while the federal government may regulate economic activity, it may not regulate economic inactivity. Thus, once you decide to purchase health care insurance, the government can regulate the terms of your insurance policy. However, you cannot be forced to purchase the policy in the first place. To breach the activity-inactivity line, wrote Judge Roger Vinson, would invite all kinds of well-intended, but liberty-destroying, laws.
On May 19, 2008, the United States Court of Appeals for the Fourth Circuit held that an alien was foreclosed from establishing that alleged ineffective assistance of counsel deprived him of his right to due process, as aliens do not possess any constitutional right to effective assistance of counsel in immigration proceedings, and thus any ineffectiveness of privately retained counsel cannot be imputed to the government for purposes of establishing a violation of the Fifth Amendment. On its face, the holding of the Fourth Circuit regarding this issue seems spectacularly uninteresting—immigration proceedings have long been recognized to be civil in nature, and thus the Sixth Amendment does not provide any right to counsel. Without a constitutional right to counsel, there can be no constitutional violation if privately retained counsel performs ineffectively, as there will be no nexus in those circumstances between the counsel’s ineffectiveness and the state action required for invoking the Constitution. Notwithstanding this seemingly straight-forward analysis, the Fourth Circuit joined just one other court, the Court of Appeals for the Seventh Circuit, in finding that ineffective assistance of counsel in immigration proceedings does not constitute a violation of an alien’s right to due process. Every other court of appeals that addressed this issue has found that, although the Sixth Amendment does not guarantee a right to counsel in immigration proceedings, ineffective assistance of counsel may render the proceedings so fundamentally unfair and so impeding the presentation of an alien’s case that the ineffectiveness could deprive an alien of his right to due process under the Fifth Amendment. These courts have reached this conclusion in a perfunctory fashion, without squarely reconciling Supreme Court precedent that seems to argue strongly against the possibility that the ineffective assistance of counsel may constitute a violation of due process in circumstances where the Constitution does not provide a right to counsel.
In the waning days of the Bush administration, the Department of Labor (“DOL”) issued Interpretive Bulletin 08-1 (“IB 08-1”) concerning the legal obligations of employee benefit plan fiduciaries when they invest the plan assets they control. Specifically, IB 08-1 addresses plan fiduciaries’ duties in the context of “economically targeted investing,” the investment of plan assets in pursuit of benefits for third parties rather than for plan participants and their beneficiaries. IB 08-1 revises prior regulations on economically targeted investing issued early in the Clinton administration.
The assets held in trust by employee benefit plan fiduciaries represent compensation earned by plan participants. In accordance with the duty of loyalty codified by the Employee Retirement Income Security Act of 1974 (“ERISA”), such assets must be invested with single-minded concern for the welfare of the participants and their beneficiaries. Economically targeted investing contravenes ERISA’s duty of loyalty by permitting, indeed encouraging, plan trustees to invest plan assets to generate ancillary benefits for persons other than the participants whose labor is embodied in those assets.
Responding to Judge Arthur L. Alarcón, Remedies for California’s Death Row Deadlock, 80 S. Cal. L. Rev. 697 (2007).
Responding to Jean Rosenbluth, Would Californians Have the Courage of Their Convictions in the Face of Fully Functioning Death Penalty?, 81 S. Cal. L. Rev. Postscript 1 (2008).