Category: Courts

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Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?

Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.

History is rife with examples of Justices who disappointed their appointing presidents.   As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.”  My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.

My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.

5

The Senate’s Influence over Supreme Court Appointments

Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.

With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.

Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.

Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.

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Recommended Reading: Garrett and Kovarsky’s New Casebook on Federal Habeas Corpus

A new casebook co-authored by University of Virginia law professor Brandon Garrett and my brilliant colleague Lee Kovarsky is the first to comprehensively cover habeas corpus, particularly exploring the topics of post-conviction review, executive and national security detention litigation, and the detention of immigrants. The book, just published by Foundation Press, is titled “Federal Habeas Corpus: Executive Detention and Post-conviction Litigation.” 

The privilege of habeas corpus — which ensures that a prisoner can challenge an unlawful detention, such as for a lack of sufficient cause or evidence — has grown increasingly complex and important. Just this week, the Supreme Court decided important habeas cases recognizing an innocence-exception to habeas time-limits, and making it easier for state inmates to use habeas corpus to challenge the ineffectiveness of their trial lawyer. See Garrett and Kovarsky on ‘Two Gateways to Habeas’)

Here is an excerpt of an interview of Professor Garrett and Professor Kovarsky posted on the UVA website:

“In writing this casebook, our goal was to create the subject,” Garrett said. “There is something deep connecting different parts of habeas corpus that are often taught in far-flung parts of courses or are not taught at all. Habeas corpus is now an extremely valuable and exciting course to teach, and we thought the subject demanded a rich set of teaching materials.”

Garrett, who has taught habeas corpus at UVA Law for eight years, co-wrote the book with Kovarsky, a 2004 Virginia Law graduate and a leading habeas and capital litigator who joined the University of Maryland’s Francis King Carey School of Law as an assistant professor in 2011.

“A few years ago, I started talking to Lee about habeas corpus,” Garrett said. “Lee writes insightful scholarship about habeas corpus, and is also a longtime habeas practitioner; he still works on high-profile death penalty cases in Texas. I sent him my course materials because he was starting teaching as a law professor at Maryland. And he immediately said that this should be a casebook.”

Kovarsky said he and Garrett decided to work together on the project to identify — and establish — a habeas canon that was “divorced from any immediate political, ideological or institutional objective.”

 “The decisional law and academic literature is polluted with too much erroneously accepted wisdom about the [writ of habeas corpus’] essence and, by implication, its limits,” he said. “That accepted wisdom, in turn, fuels legally substantial narratives that are, in many ways, best explored, challenged and modified in a classroom.”

Traditionally, Garrett said, law schools have taught habeas corpus as a short segment in federal courts or criminal adjudication courses rather than as a full class. Yet these brief segments, he said, are no longer sufficient.

The law of habeas corpus became significantly more complicated after Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, which was passed in the wake of the Oklahoma City bombing and the first World Trade Center bombing. Read More

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Proxy Patent Litigation II

Previously I posted on the issue of proxy patent litigation. Basically, mass patent aggregators (entities which own or control a large number of patents that they have acquired from elsewhere) litigate only a few of the patents in their portfolio against a large accused infringer. The litigated patents serve as proxies for the quality of their entire portfolio. If the aggregator is successful on the merits (or at least in preliminary rulings, such as defeating the accused infringer’s motions for summary judgment on invalidity and non-infringement), it strengthens their hand considerably in negotiations for a license for the entire portfolio. The proxy litigation is also only one part of a broader dynamic from the aggregator’s perspective:  the aggregator’s success in court against one practicing entity not only puts it in a stronger bargaining position against that entity, it may also do so with the rest of industry as well (i.e., other firms may be willing to pay more for a portfolio license).

I now attempt to answer a question I posed in my previous post. Specifically, if the court understood the underlying dispute was litigation-by-proxy, would it (or could it) proceed any differently?

I think it is useful to consider this question through the prism of the classic project management triangle. According to theory, a project has three core attributes: speed, quality, and cost. There is tension among the three attributes, and consequently, one can never maximize more than two of them. For instance, if one wants a project of the highest quality in the fastest time, then it can’t be cheap. Alternatively, if one wants a project fast and cheap, then it can’t be of the highest quality.

Now let’s translate the project management triangle into the judicial process. Several core attributes of a case are speed of resolution, depth and thoroughness of the analysis, and accuracy or correctness of the decision. If the project management triangle is correct and applies to the courts, then all three of these can’t be maximized at once. While the court and litigants want speedy, thorough, and accurate justice, not all are possible in a case.

Now turn back to the proxy litigation by patent aggregators. I submit that the optimal level of speed, thoroughness, and accuracy may be different in proxy litigation than run-of-the-mill litigation. The depth and thoroughness of the opinions may be of less importance in proxy litigation because the adjudicated dispute is not the entire dispute between the parties. Accuracy may be more important since the results of the single dispute will be used to determine the value of a larger portfolio.

Thoughts on the analysis?

6

Proxy Patent Litigation

In the last decade or so, patent litigation in the United States has undergone enormous changes. Perhaps most profound is the rise in enforcement of patents held by people and entities who don’t make any products or otherwise participate in the marketplace. Some call these patent holders ‘non-practicing entities’ (NPEs), while others use the term ‘patent assertion entities’ (PAEs), and some pejoratively refer to some or all of these patent holders as ‘trolls.’ These outsiders come in many different flavors: individual inventors, universities, failed startups, and holding companies that own a patent or family of patents. 

This post is about a particular type of outsider that is relatively new: the mass patent aggregator. The mass patent aggregator owns or controls a significant number of patents – hundreds or even thousands – which it acquired from different sources, including from companies that manufacture products. These mass aggregators often seek to license their portfolios to large practicing entities for significant amounts of money, sometimes using infringement litigation as the vehicle. Aggregators often focus their portfolios on certain industries such as consumer electronics.

Mass aggregator patent litigation and ordinary patent litigation appear to differ in one important aspect. Mass aggregators sue on a few patents in their portfolio, which serve as proxies for the quality of their entire portfolio. The parties use the court’s views of the litigated patents to determine how to value the full patent portfolio. By litigating only a small subset of their portfolio, the aggregator and potential licensee avoid the expense of litigating all of the patents. But the court adjudicates the dispute completely oblivious to the proxy aspect of the litigation. Instead, the court handles it like every other case – by analyzing the merits of the various claims and defenses.

If the court understood the underlying dispute was litigation-by-proxy, would it (or could it) proceed any differently? I will discuss my thoughts on this question in another blog post. For now, I have a question: does proxy litigation occur in other areas of law?

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The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.

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Software Patent Eligibility

This post reflects my initial impressions of an important Federal Circuit development in patent law, which is my primary area of scholarly focus. On Friday, the Federal Circuit, sitting en banc, ruled on a controversial and divisive patent law issue, whether software inventions are patent eligible subject matter. Unfortunately, I find the decision in this case, CLS Bank v. Alice Corp., quite unsatisfying.

The court, sitting with 10 judges, issued 7 separate opinions spanning 135 pages. The court only agreed upon a very brief – 55 words – per curiam opinion affirming the district court ruling that the asserted patents were invalid. The per curiam opinion explained that the “method” and “computer readable media” claims were deemed not patent eligible by the Federal Circuit, while the court was equally divided on the status of the “system” claims. (Basically, there are several different ways that a software invention can be claimed in a patent, including as a process/method of performing steps; as software embedded upon a computer readable medium (i.e., a DVD); and as a system (i.e., software running on a machine/computer).) None of the remaining substantive opinions garnered more than 5 votes – thus, none are binding precedent. Although a majority of the Federal Circuit judges found the method and media claims invalid, a majority could not agree upon the reasoning. Below I will briefly provide a few preliminary observations about the opinions.

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Justice Ruth Bader Ginsburg headlines Thomas Jefferson Law School Women and Law Conference

Last Friday, Justice Ruth Bader Ginsburg spoke at the 13th Annual Women and Law Conference at Thomas Jefferson Law School. A packed house listened as panelists discussed a variety of issues relating to women in the judiciary, and the highlight of the day was an extended and candid Q&A with Justice Ginsburg herself. Read More