The Supreme Court’s decision to bar the foreign discoverability requirement in Intel Corp. v. Advanced Micro Devices, Inc. has led district courts after Intel to render troubling and inconsistent decisions on whether to grant requests for discovery for use in foreign tribunals under 28 U.S.C. § 1782(a). Because Intel gave district courts no guidelines for evaluating foreign tribunals’ receptivity to discovery acquired in the United States, § 1782(a)’s goals of fostering international judicial cooperation and providing efficient resolutions offoreign cases have gone unfulfilled.
Over the past twenty-five years, unions have turned increasingly to strategies outside the traditional framework of the National Labor Relations Act (“NLRA”). Frustrated by an ineffective NLRA legal regime and the demise of the economic strike, organized labor has pursued coordinated approaches in order to generate extended economic pressure on private employers who seek to avoid recognizing unions or to resist bargaining collective agreements. Coordinated campaign tactics include publicity efforts aimed at attracting media attention and consumer interest; regulatory reviews initiated to focus on a company’s possible health, safety, environmental, or zoning violations; and investigations of a company’s financial status through use of pension funds or other shareholder resources. Unions relying on these comprehensive campaign or corporate campaign strategies have enjoyed some success which in turn has contributed to a modest rise in private sector union density, the first such increase for decades.
Management responses to comprehensive campaigns often involve filing lawsuits against unions and workers. Employer civil actions may invoke state defamation law, federal labor law prohibiting secondary boycotts, or federal antitrust law. But the most high-profile and dramatic form of employer retaliation in court is lawsuits alleging a pattern of unlawfully extortionate activities under the Racketeer Influenced and Corrupt Organizations Act (“RICO”).
Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (“ATSSSA”). The September 11th Victim Compensation Fund (“VCF”) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy’s victims and victims’ families. The ATSSSA also permitted victims to pursue traditional litigation instead.
The ATSSSA contains three “jurisdictional” features that have shaped the path of the litigation. The Act created a federal cause of action “for damages arising out of” the terrorist-related aircraft crashes and gave the Southern District of New York original and exclusive jurisdiction over all actions “resulting from or relating to the terrorist-related aircraft crashes.” Finally, it implemented a liability cap by limiting recovery in all actions to the defendants’ available liability insurance. These jurisdictional aspects of the “traditional” litigation option under the ATSSSA contain unusual and practically unprecedented elements, yet they have received almost no scholarly attention. This Article attempts to fill that gap by telling the story of the course of the September 11th litigation, tracking the challenges and issues that have arisen as a result of the ATSSSA’s coordination mandate, and exploring the relationship between federalization of forum and aggregation of claims.
In 1995, Congress enacted the Private Securities Litigation Reform Act of 1995 (“PSLRA”) to address the serious flaws in the private securities litigation system. Courts, Congress, and many commentators agreed that the chief evil plaguing the system was strike suits, suits “based on no valid claim, brought either for nuisance value or as leverage to obtain a favorable or inflated settlement.” Strike suits prevailed in private securities claims because, irrespective of the merits of the claim, it was usually less costly for defendants to settle than fight the allegations. Plaintiffs’ attorneys realized that defendants would settle and took advantage of the situation, sometimes filing claims based on bad news rather than evidence of wrongdoing. Congress stepped in to put an end to these abusive strike suits by enacting the PSLRA, which, among other things, raised the pleading standards for private securities claims, stopped plaintiffs from abusing the discovery process to force settlements, and made the threat of sanctions under Federal Rule of Civil Procedure 11 (“Rule 11”) more imposing.
The U.S. Patent and Trademark Office (“PTO”) issues over 170,000 patents a year. Unfortunately, the PTO makes mistakes and issues some invalid or “bad” patents that do not meet the statutory requirements of novelty and nonobviousness. The simplest approach to eliminating bad patents is to subject applications to stricter scrutiny by the PTO. A recent article, however, has questioned the efficiency of spending more resources at the examination stage. Aside from the patent prosecution procedure, federal patent law allows administrative reexaminations, either ex parte or inter partes. Nevertheless, the effectiveness of this approach is undercut by the low number of reexaminations actually requested.
This Note takes a more indirect route to improving patent quality. A major problem with the patent litigation system is that it is often cheaper for individual defendants to settle than to litigate, even if the patent is clearly invalid. The current system allows patentees to profit from bad patents and, therefore, creates an incentive to file bad patents. Further, patentees strategically sue small companies, knowing that they lack the resources to challenge patent validity effectively.
United States courts of appeals and a number of state appellate courts permit their judicial panels to designate certain decisions as unworthy of publication and as “non-precedential” even though an opinion has been written that justifies them. The designation is based on an assessment by the decisional panel that the resolution of the appealed issues has not added new law to the jurisdiction’s already existing body of law. Judge Richard Posner has described this criterion as “imprecise and nondirective.” An empirical study “casts serious doubt on whether the official criteria for publication of opinions provide a meaningful guide to the judges.” Once a decision-with-opinion receives the “non-precedential” label, it may not be used as authority in future cases by any of the jurisdiction’s courts, and lawyers are prohibited from citing it in their briefs and oral arguments. These opinions were once called “unpublished” and were distributed only to the parties to the appeal, but they are now widely available through online databases and through the Federal Appendix, a new West publication. This Article uses the noun “non-precedent” and the adjective “non-precedential” to refer to these opinions.
The selective publication policy evolved in the precomputer era when courts and judicial councils worried about their physical ability to publish hard copies of the ever-increasing number of court opinions, the costs to the legal community of acquiring and storing voluminous law reporters, and overwhelming law-finding devices.