Cornell Law Review, Volume 93 Number 4 (May 2008)

Articles

Grand Jury Discretion and Constitutional Design
Roger A. Fairfax, Jr.

Can Law Manage Competitive Energy Markets?
David B. Spence

Notes

Striking a Better Public-Private Balance in Forum Non Conveniens
Emily J. Derr

Restitution and the Lacey Act: New Solutions, Old Remedies
Kenneth B. Meyer

Book Review

The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making
Gregory C. Sisk

I've always wondered about a related question. The judiciary adheres to stare decisis for many principles of law, but it seems to allow a free-for-all when it comes to interpretative method. Interpretative method (for both the Constitution as well as statutes) is left to the discretion of each individual judge or justice. So one judge might be an originalist, another might be a textualist, and yet another might adhere to the "living constitution." On the Supreme Court, for example, its institutional opinions -- those of the majority -- seem to shift from one interpretative method to another depending upon which justice authors that opinion. Why isn't the method of constitutional or statutory interpretation governed by stare decisis?

Stare decisis is justified based on the need for stability and consistency in the law. We frequently hear lofty pronouncements by courts about the great value of precedent. But these same values that underpin and justify stare decisis seemingly also apply to interpretative method. Wouldn't constitutional law be more stable and consistent if all the justices were to adhere to stare decisis about what method (originalism, textualism, etc.) should be used to interpret the Constitution? Why not bind justices in this way?

Of course, if methods of interpretation don't matter in the end, if cases are just decided on ideology and interpretative methods and theories are just elaborate window-dressing, then my question doesn't matter all that much. But if these methods do carry some influence or weight, if they do matter at all, then why do they remain so unsettled? Why not bind them with stare decisis? Perhaps justices might feel too constrained. If Justice Thomas couldn't be an originalist because of stare decisis, would this impinge upon his own individual prerogative, his unique judicial style? But stare decisis is about constraining justices based on what past justices have decided. So why not bind justices in this manner?

Is there a good argument for why stare decisis should not apply to interpretative method?

Image credit: David Lat (who has photos on my favorite photo site, Stock.xchng)

Among lawyers, the games may be best-known for the regular moral panics they induce over fears of copycat violence, and for attorney Jack Thompson’s increasingly bizarre crusade against them. We might also ask what kind of a legal world the GTA series envisions within its famously capacious in-game universe.

The series’s built-in attitude of rampant lawlessness—it’s named after a crime, after all—might suggest a kind of deliberate criminality. That’s certainly the interpretation that fuels the regular calls for the games to be banned. And yes, the plots typically chart the protagonist’s Scarface-style rise as he carries out errands both murderous and larcenous for an entertaining assortment mob bosses. This interactive representation of lawlessness—the player playing at the role of criminal—puts the Grand Theft Auto games squarely within the tradition of deliberate shockers like Postal.

But this may be an unduly harsh take, and not just because the claim that playing violent games leads to violence in meatspace rests on some dubitable social science. San Andreas may well show us the world as Holmes’s bad man would see it, but consider the lessons he’d learn from it. Crime doesn’t always pay. In fact, offhandedly casual offenses—driving on the sidewalk to circle around traffic, say, and in the process clipping a pedestrian—can put the police on your tail. And the aggresive things you do to try and shake them often wind up making matters worse. Before you know it, you have a six-star wanted rating, they’re sending in the black helicopters, you’re crouched in a doorframe, and there’s pretty much only one way this story can end. Exaggerated though the arc may be, it does illustrate some of the vicious circles trapping the poor, the desperate, and the criminal.

Or consider the in-game depictions of the legal system itself. Get arrested by the police, and you’re back on the streets within seconds—minus some bribe money. Call it an indictment of revolving-door-prison liberalism, or call it an indictment of police more interested in protecting their turf than in doing justice or confronting Liberty City’s very real problems. The lawyers don’t come across much better: Ken Rosenberg is a paranoid cokehead who asks our hero to fix a case by intimidating jurors.

One last thought. Given the games’ increasingly humongous alternate reality, how about building in a penal code? Grand Theft Auto’s legal geekery index would soar if every unlawful act were accompanied by a statement of exactly what crime the player had just committed. “Arson in the second degree!” “Involuntary manslaughter!” “Grand theft garbage truck!” For added fun, the crimes could be correlated with a set of sentencing guidelines, so that the in-game statistics screen would tally up precisely the number of years of imprisonment the protagonist deserved.

When the votes were actually counted, after the fact, they showed that Bush would have won anyway. Nearly eight years later, it is safe to say that the case has not generated a jurisprudential revolution, even though a panel of Ninth Circuit judges tried to stop the California recall election by relying on Bush v. Gore, only to be overturned by an en banc panel of the Ninth Circuit. The Supreme Court has not cited the case at all, as far as I know, since Bush v. Gore was decided. Indeed, it is hard to imagine a constitutional law case decided in the past eight years that has been referenced less than Bush v. Gore has been referenced.

Many predicted that Bush v. Gore would undermine public support for the Court. Justice Stevens wrote in his dissenting opinion that "[t]ime will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Most of the studies of which I am aware show that Bush v. Gore has not, over the longer term, affected the Supreme Court's image in the public eye. Some studies show that there were short-term effects, but other research has demonstrated that over the longer-term the image of the Court has not been affected. If anything, some research has shown that public knowledge of the Court has increased, which is probably a good thing.

There is evidence that, consciously or not, law professors have tended to regard Bush v. Gore as not too big of a deal. As I taught my first Constitutional Law class this past year, I was shocked to see that Bush v. Gore was not even excerpted in the casebook I used, and was only referenced in passing in a few places.

But still, it HAS to be a big deal for the Supreme Court to intervene and essentially decide a presidential election. The case might not have made a big difference in measurable ways--or at least the measurable ways mentioned above--but when a court intervenes in that way, it has enormous symbolic importance in a democracy. So, even though Bush v. Gore does not affect any of the doctrinal issues in the (structural) constitutional law class, I assign excerpts of the case, for reasons of cultural literacy.

What do others do? I have not surveyed all of the casebooks, but my sense is that the casebook I used was not alone in not paying too much attention to the case. Do people assign this case? In what part of the class?

First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.

Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:

Southern California Law Review, 81:3 (March 2008)

Articles

Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405 (2008)

David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477 (2008)

Notes

Padraic Foran, Unreasonably Wrong: The Supreme Court's Supremacy, the AEDPA Standard, and Carey v. Musladin, 81 S. Cal. L. Rev. 571 (2008)

Michael Moulton, Effecting the Impossible: An Argument Against Tax Strategy Patents, 81 S. Cal. L. Rev. 631 (2008)

As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at "Copyright Management" In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading -- such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

One disturbing thing is that no one knows exactly how these NSLs are being used or managed or if they do, they can’t talk about it. That situation reminds me of the private military context where the government also had little sense of how many and under what terms the PMCs were used. In other words, lack of oversight often leads to abuse, but then many know that, right? Another problem is that again like the PMC context, it seems quite difficult to have any sunshine fall upon this process. Why not have a judge look at such a letter? It seems the information is not going anywhere. Quite the opposite; remember it is preserved.

There is more to say on secrecy but for now I recommend Secrecy: The American Experience by Daniel Patrick Moynihan. I think I have recommended it before and probably Patrick O’Donnell has offered other books on the topic (which is always welcome). But as it is on my mind and an excellent look at how secrecy can help and harm a fight against whoever our enemies may be, I offer it again.

Texas Law Review, Volume 86, Number 6 (May 2008)

ARTICLES
Technocracy and Antitrust
Daniel A. Crane

Standards, Testing, and School Finance Litigation
James E. Ryan

BOOK REVIEW
Of Cabbages and Kings: A Review of Our Undemocratic Constitution by Sanford Levinson
Charles D. Kelso & R. Randall Kelso

NOTES
Remedying Daubert's Inadequacy in Evaluating the Admissibility of Scientific Models Used in Environmental-Tort Litigation
Matthew W. Swinehart

Standing Up for Justice: A Case for Amending a Rule that Unreasonably Restricts Who May Sue for Injury to Real Property
Claire B. Chandler

Boston University Law Review, 88:2 (April 2008)
For prior issues, please visit our website.

SYMPOSIUM: THE ROLE OF THE PRESIDENT IN THE TWENTY-FIRST CENTURY

Contents

Introduction, 88 B.U. L. Rev. 321 (2008)

Saikrishna Bangalore Prakash, A Taxonomy of Presidential Powers, 88 B.U. L. Rev. 327 (2008)

Robert D. Sloane, The Scope of Executive Power in the Twenty-First Century: An Introduction, 88 B.U. L. Rev. 341 (2008)

Michael D. Ramsey, Presidential Originalism?, 88 B.U. L. Rev. 353 (2008)

Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, 88 B.U. L. Rev. 375 (2008)

Dawn E. Johnsen, What’s a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. Rev. 395 (2008)

John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421 (2008)

Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. Rev. 459 (2008)

Julian E. Zelizer, The Conservative Embrace of Presidential Power, 88 B.U. L. Rev. 499 (2008)

William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. Rev. 505 (2008)

Harold J. Krent, From a Unitary to a Unilateral Presidency, 88 B.U. L. Rev. 523 (2008)

Daniela Caruso, (Presidential) Powers in the European Union, 88 B.U. L. Rev. 561 (2008)

Brooks is happy to report that his political allies are "winning the happiness game hands down." He gives several hypotheses for conservative joy; stronger religiosity, more time with family, a preference for "simplicity" over "complexity," and less likelihood to see oneself as a victim. Brooks occasionally concedes Mill's argument that it is "better to be Socrates dissatisfied than a pig satisfied." But he appears most amenable to the view that liberals are likely to be whiny, complaining, resentful people, while conservatives resolutely consider themselves in control of their fate and satisfied with their lives.

Brooks's research raises a number of interesting policy questions. First of all, what's his root concern--happiness or virtue? We might map the classic tension between freedom and virtue to the present case: is it good action or the subjective feeling (Brooks alleges) it creates the desideratum here? If the latter, why not just provide people with soma? If the former, it's a bit odd to introduce the "happiness evidence" as a reason for being, say, conservative, or good. Who's Brooks's audience? Exhausted hedonists just on the brink of giving up their Don Juan days to find more lasting pleasure at anti-tax rallies?

[Defendant is enjoined and restrained] from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords in any internet advertising purchased or used.

So here the mark is Orion. The defendant has been found to have infringed. The normal range of prohibited future activities is in place. But in addition, the defendant must take steps to prevent its appearance on a search engine results page when someone is looking for the plaintiff’s services. The court explains:

For purposes of this court order, a “negative keyword” or “negative adword” shall mean a special kind of advertiser keyword matching option that allows an advertiser to prevent its advertisement from appearing when the specific terms are a part of a given user’s internet search or search string. It does not infer that the Defendant may use the specified negative keywords or adwords for any other purpose.

Now it seems the defendant was rather blatantly trying to use the plaintiff’s mark (counsel appeared but an answer was not filed). Yet, if the plaintiff’s mark and business match the litany of strength that the court offers (“ranked fourth in the nation among community bank holding companies and thrifts for outstanding performance,” “In June of 2006, Plaintiff was ranked as Florida’s Top Performing Community Bank for the second consecutive year, and was also ranked among the nation’s top performing bank holding companies,” “In June of this year, American Bankers Association’s (ABA) Banking Journal, ranked Orion Bancorp, Inc., fifth in the nation for outstanding financial performance”), wouldn’t a competitor want to be able to appear when someone searched for the premiere bank of the region? Shouldn’t that be allowed?

The finance ministry described the move as a bid to improve transparency.

Deputy Economic Minister Vincenzo Visco said he could not understand what all the fuss was about.

"I can't understand what the problem is," he is quoted as telling Italy's Corriere della Sera newspaper.

"This already exists all around the world, you just have to watch any American soap to see that. We had the system ready by January but we delayed publication to avoid arguments during the election campaign."

Jobs is also among the most controversial figures in business. He oozes smug superiority, lacing his public comments with ridicule of Apple's rivals, which he casts as mediocre, evil, and - worst of all - lacking taste. No CEO is more willful, or more brazen, at making his own rules, in ways both good and bad. And no CEO is more personally identified with - and controlling of - the day-to-day affairs of his business. Even now, Jobs views himself less as a mogul than as an artist, Apple's creator-in-chief. He has listed himself as "co-inventor" on 103 separate Apple patents, everything from the user interface for the iPod to the support system for the glass staircase used in Apple's dazzling retail stores.

Jobs put the procedure [surgery] off for more than nine months, raising the thorny issue of disclosure. He told the board, and the board decided to say nothing. Palo Alto attorney Larry Sonsini, the company's longtime outside counsel, advised the directors that the CEO's right to privacy trumped any disclosure requirement as long as he could continue to perform his duties. A second outside lawyer agreed.

So Apple conducted business as usual, disclosing nothing and letting the tiny circle of insiders who knew about the situation continue to trade Apple shares.

Payless lost most of its key legal arguments in a set of pretrial rulings back in February, as Rebecca Tushnet explained at the time. But even if one might have predicted an Adidas victory at that point, I think its magnitude is pretty surprising. It doesn't look like this award is vulnerable to a due process attack in the vein of BMW v. Gore and State Farm, however, because the punitive damages appear to have been calculated to represent double the Payless profits attributable to the infringement ($30.6 million in actual damages, $137 million in profits, and $137 million in punitive damages). In those cases, by contrast, the ratio of punitive to actual damages was many times greater (145:1 in State Farm).

The dispute centers on 268 different Payless sneakers with parallel stripes. (Images here.) Adidas has a trademark for three parallel stripes on the side of a shoe. The jury found that all but one of the Payless versions, with various numbers of stripes on the side, infringed on that trademark.

Some might consider those stripes a pretty basic aspect of sneakers. I remember all my sneakers as a kid looking like that, and I think they were usually Keds. Indeed, one of my 4-year-old daughter's favorite books, Alexander and the Terrible, Horrible, No Good, Very Bad Day, written in 1972, illustrates the point very nicely (sign into Amazon here for the image):

So then we went to the shoestore to buy some sneakers. Anthony chose white ones with blue stripes. Nick chose red ones with white stripes. I chose blue ones with red stripes but then the shoe man said, We're all sold out. They made me buy plain old white ones, but they can't make me wear them. ... It was a terrible, horrible, no good, very bad day.

I think the Payless attorneys know just how you feel, Alexander. ("The jury found that stripes on sneakers identify Adidas as their source in the public mind, and I still have to pay the lawyers, and now we have to file the post-verdict motion to set aside the damages and then the appeal. And I have to wear my railroad train pajamas, and I hate my railroad train pajamas.")

[Cross-posted on Info/Law]

Coming next: Docketology, Part II.