Wednesday, March 01, 2017
The Federal Circuit and "Patent Exceptionalism": Part III
As discussed in Parts I and II, legal doctrines developed by the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. At the end of this month, the Supreme Court will hear TC Heartland v. Kraft Foods—a case concerning venue in patent cases which, at first glance, seems to fit that mold. However, as Paul Gugliuzza (Boston University) and I have argued in a recent article and discussed elsewhere, venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the Federal Circuit’s understanding of the patent venue statute—i.e., that it allows corporate defendants to be sued in any district where they are subject to personal jurisdiction—is completely consistent with venue in other federal civil cases.
The question in TC Heartland is whether the patent venue statute, 28 U.S.C. § 1400(b), is supplemented by the general venue statute, 28 U.S.C. § 1391. Section 1400(b) provides that patent infringement actions may be brought “where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” While § 1400(b) does not define the term “resides,” the general venue statute does. Specifically, § 1391(c) says that corporate defendants reside in districts where they are subject to personal jurisdiction. For more than twenty-five years, the Federal Circuit has held that the term “resides” in the patent venue statute should be defined according to § 1391(c).
So, why has the Supreme Court decided to weigh in on this issue now? First, the petitioner in TC Heartland argues that the Supreme Court decided this precise question in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957), and that the Federal Circuit has failed to follow that decision. It is true Fourco held that the general venue statute—as it read at the time—did not supplement the patent venue statute. But over the past sixty years, the general venue statute has been amended several times, and the plain language now makes clear that § 1391(c)’s residency definition applies to the patent venue statute. Second, and perhaps more importantly, the Supreme Court has taken up this issue for policy reasons. Today, roughly 40% of all patent cases are filed in the Eastern District of Texas. In East Texas, plaintiff discretion over forum selection has incentivized judges to adopt rules and practices favorable to patent holders in an effort to attract cases, and it has encouraged litigants to engage in unseemly tactics to influence prospective jurors. Rather than resorting to a tortured interpretation of the venue statute, however, any reform to forum choice in patent cases should come from Congress.
The following is posted on behalf of Jake Linford at FSU (email@example.com), who is hosting the first PrawfsFest! since Dan's death.
I am among the many beneficiaries of that most Markelian (Markelish?) of workshops, the Prawfsfest! It has been too long since the last Prawfsfest, and so I will be hosting a new session at Florida State University College of Law in Funky Tallahassee. The plan is to gather on April 27-28, during FSU’s exam period, but before the weather turns too hot.
The point of the gathering is to be an incubator for half-baked scholarship and early works-in-progress (pre-submission, pre-SSRN). Each participant is expected to produce of a draft of no more than 10,000 words. The author does not present the paper, but instead we spend an hour on constructive criticism of each paper, which everyone will have read.
I have 6 available slots, open to any former or current PrawfsBlawgger, which will be distributed first come, first served. Each participant must cover their own travel expenses and hotel accommodations, but FSU will pick up meals. Historically, the conversation and feedback have justified the cost. I'm hoping to finalize the list of attendees as soon as possible, so please let me know (firstname.lastname@example.org) if you plan to attend by March 15, 2017.
Tuesday, February 28, 2017
Rugby and the Infield Fly Rule?
I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.
As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.
In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."
But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.
Monday, February 27, 2017
Qualified Immunity meets advisory opinions
One of my students flagged the Fifth Circuit decision in Turner v. Driver from two weeks ago. A divided panel held that the right to video-record police and police stations from the public sidewalk was not clearly established in September 2015. The court then went on to say:
Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.
That section of the opinion was even titled "Whether the Right Is Clearly Established Henceforth."
There has always been something advisory-opinionish about the qualified immunity analysis. The court addresses the merits and finds a violation, but does not impose liability in this casebecause the right was not clearly established. Instead, that merits analysis serves (perhaps) to clearly establish the right for the next case, at least the next case involving largely similar facts.
But the majority here seems to have crossed over into a pure advisory statement of abstract legal principles. It was not even purporting to do a merits-first analysis (and not just because this part came after the clearly established prong). The court did not find that the officers violated Turner's rights in this case. Rather, it simply announced a First Amendment right to record in public (subject to reasonable time, place, manner restrictions), devoid of any facts or details to the case at hand. And the court did so expressly because the issue would continue to arise in the qualified immunity context, where courts otherwise would continually have to deny liability because the right would forever remain not clearly established. Of course, the need to establish constitutional law is one reason that courts may and often should abide by the merits-first approach, even if not mandatory. This goes beyond that--law divorced from any facts or any violation in the case at hand.
Moreover, it is not clear the majority did or could achieve what it wanted to do. As the dissent argued, future cases must look to factually similar cases for the clearly established analysis, not general principles of law. But the facts were not part of the analysis here. Thus, the dissent argues, "[b]ecause the majority does not hold that the officers actually violated the First Amendment, 'an officer acting under similar circumstances”' in the future will not have violated any clearly established law."
It is good to have another circuit weighing in on the First Amendment right to record. But the way the court got there was procedurally odd.
Commercial Marijuana Advertising and the First Amendment
Many states that have legalized the commercial sale of marijuana have also sought to restrict commercial marijuana advertising. For example, Colorado prohibits licensed retail marijuana stores from advertising on television programs unless the stores have “reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.” Colorado imposes similar restrictions on print and internet advertising. (Colorado’s advertising restrictions can be found here, in Rules 1102-1115). Until recently, at least one medical marijuana state (Montana) had banned all commercial marijuana advertising.
State advertising restrictions are motivated primarily by concerns that the commercial marijuana industry might seek to promote marijuana consumption by minors, similar to the way that the alcohol industry once (still?) promoted underage consumption of beer. Indeed, some of Colorado’s advertising restrictions are directly modeled on advertising guidelines that various alcohol industry trade groups have voluntarily imposed on their members. See, e.g., the Beer Institute’s Advertising and Marketing Code.
But do government restrictions on commercial marijuana advertising violate the First Amendment?
ABA Ratings of Federal Judicial Nominees
The Wall Street Journal ran an interesting article* this weekend about the American Bar Association’s process for reviewing and rating federal judicial nominees. (You can download a PDF version here if you do not have subscription access.) The upshot of the article is that the ABA’s Standing Committee on the Federal Judiciary, a rotating group of fifteen lawyers, reviews and rates every Article III nominee before confirmation hearings begin. The Standing Committee conducts confidential interviews of those who have interacted professionally with each nominee, ranging from co-counsel and opposing counsel, to judges before whom the nominee has appeared, to judicial colleagues if the nominee is already in the bench. For Supreme Court nominees, the number of interviews can reach into the hundreds. Each nominee is then rated well qualified, qualified, or not qualified, based on a committee vote.
The ABA’s role dates back to the Eisenhower Administration. Its involvement has been controversial at times, but its general criteria for evaluating nominees—professional competence, integrity, and temperament—are wholly appropriate. For district court nominees, whose daily interaction with litigants and attorneys requires a calm demeanor and unquestioned impartiality and skill, the ABA’s review is a welcome assessment of the nominee's temperament and ability. For appellate nominees, the same focus on demeanor and skill is beneficial in a different way. There is no question that policy considerations guide a President’s selection of a Supreme Court nominee, nor is there any question that the Senate is inclined to turn every Supreme Court confirmation hearing into excruciating political theater. But however it ends, the process should begin with a strong vote of confidence that the nominee is professionally up to the job.
* Full disclosure: I was interviewed for, and quoted in, the article. But that’s not why it’s interesting!
Rules for a Flat World: the UK experience
Hadfield argues that many of the changes she suggests we make have already been made in the UK and Australia. Such changes are amongst the ‘low-hanging fruit’ that are ripe to be picked by the US Bar. Making such changes will, she argues, promote necessary innovation.
Licensing entities to be legal providers, licensing multiple legal professions and right regulation are the three elements in the modernization of legal markets in the UK triggered by the Legal Services Act 2007.
Hadfield argues that these changes put the UK in a good position for building the better legal infrastructure increasingly complex world.
Let’s examine the impact in England and Wales of the first of these changes. Entities licensed to be legal providers are known as alternative business structures (ABS). An ABS is a firm where a non-lawyer is a manager of the firm, or has an ownership-type interest in the firm. A firm may also be an ABS where another body is a manager of the firm, or has an ownership-type interest in the firm and at least 10 per cent of that body is controlled by non-lawyers. A non-lawyer is a person who is not authorised under the Legal Services Act 2007 to carry out reserved legal activities.
Reserved legal activities in England and Wales under the Legal Services Act are exercising the right of audience in front of a court; the conduct of litigation; reserved instrument activities (instruments for transfers or charges on land); probate or notarial activities and the administration of oaths.
In March 2012 the Law Society congratulated the first three practices licensed as ABS’ by the Solicitors Regulation Authority (SRA). They were Co-operative Legal Services, Lawbridge Solicitors and John Welch and Stammers. At the time, Co-op Legal Services which was set up in 2006, employed 400 staff and had plans to add a further 150. ABS status was intended to allow it to diversify into family law and to support services in personal injury claims, conveyancing, wills, probate, and employment law. John Welch & Stammers based in Witney, Oxfordshire since 1932 had seven fee earners and 11 support staff and ABS status allowed them to appoint their practice manager as a non-lawyer managing partner to join two existing solicitor partners. Finally, Lawbridge Solicitors, based in Sidcup, Kent, had one solicitor who could be joined in the shareholding by the firm’s practice manager who was also his wife.
In our recent Future of Legal Services Report (2016) the Law Society noted that ‘initial take-up of ABS has been reasonably slow’. We have also pointed out that whilst there is some evidence that ABS may be more innovative in the way they deliver services and handle complaints ‘innovation can describe new-to-the-firm services rather than new-to-the-market services’. We are also not aware of any strong evidence that ABS provide cheaper legal services and thereby improve access to justice.
Perhaps one of the most interesting characteristics of ABS – in line with the nature of the first entities to licensed – is that most ABS are small, traditional law firms wishing to take advantage of the opportunity to include non lawyers as owners or investors. We have also pointed out that uptake of ABS status by new entrants offering more innovative business models has been relatively slow and there have been some high profile failures, for example when the Parabis group went into administration owing almost £50m to more than 2,500 unsecured creditors in November 2015.
So what has not yet happened is the leveraging of additional capital to invest in technology to support new processes and, perhaps, new types of legal service that many advocating for ABS originally anticipated. However, as the Chairman of the Legal Services Board pointed out in 2016 ‘it is still early days in the licensing of ABS, and not enough time has passed to come to a definitive view on the long-term impact of ABS on the market.’
Whilst Hadfield may be correct in her identification of low-hanging fruit, it is not clear that they are yet ripe.
Sunday, February 26, 2017
One more from Hernandez v. Mesa
The following exchange occurred toward the end of Petitioner's argument:
Justice Alito asked whether a plaintiff would have a § 1983 action if the shooter had been a state or local police officer; petitioner's attorney responded "You would not have a claim over the State officer, but if you don't --but a Bivens claim--a constitutional Bivens claim could apply to the State officer."
Did counsel misspeak? Or is he arguing that a plaintiff can enforce the Fourteenth Amendment (including the incorporated Fourteenth Amendment) through a Bivens action in situations in which § 1983 runs out (as everyone seems to accept here, where § 1983 protects citizens and "other person[s] within the jurisdiction thereof")? And can that be right, certainly descriptively, under the Court's recent Bivens jurisprudence, where § 1983 would be an alternative remedy?
Towards the Law of Legal Services: Reflections on Gillian Hadfield's "Rules for a Flat World"
The public now has access to an increasingly wide array of legal service providers other than lawyers and law firms. I referenced some of those options in an earlier post. These developments require a new way of thinking about the regulation of legal services, and Gillian Hadfield’s excellent book, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy, adds an important new conceptual framework for what this approach might look like.
The Inadequacy of the Law of Lawyering
I come to this subject having written a bit about it. In an article, “Towards the Law of Legal Services,” I argued that it is time for us to broaden our thinking about the regulation of legal services. Rather than focusing on the “law of lawyering” – the body of rules and law regulating lawyers – I suggested that we need to develop a broader “law of legal services” that authorizes, but appropriately regulates, the delivery of more legal and law-related assistance by people who do not have a J.D. degree and who do not work alongside lawyers. Here is one way to visualize the point (click on the diagram if you have trouble reading the fine print):
The Ringer looks at the many, many lawyers who have gone on the Bachelor/Bachelorette, including the upcoming bachelorette.
Saturday, February 25, 2017
Some reflections on technology, law and legal systems following "The Future of the Professions" and "Rules for a Flat World"
I should clarify at the outset that this comment deals mainly with the book by Richard and David Susskind, even if some links will be made to the book by Gillian K. Hadfield. I should also clarify that I am broadly in agreement with the key theses that underlie these two excellent books, and for that reason my reflections my reflections will seek to build upon them rather than to take issue on their core arguments.
Richard and David´s book starts off in a provoking way, by taking for granted that technology shall replace, in an amount of time yet to be determined, most professionals by less expert people and high-performing systems. For the authors, this claim will have profound implications on the “grand bargain” that is still at the bottom of modern, capitalist, and democratic societies, according to which we essentially have decided to trust professionals´ expertise through the mediation of a system of institutions, norms, rules and procedures that ensures that they perform their professional duties not just for their benefit but for the benefit of society (p.22). In essence, the grand bargain means that big privileges derive big responsibilities towards society.
Friday, February 24, 2017
Who Speaks for the Courts? Who Should?
The President’s recent (and not-so-recent) tweets about the federal judiciary have spurred discussions among legal academics about whether the courts can really defend themselves in the public sphere—and if not, whether one or more (presumably self-appointed) groups should do it for them.
I admit to being of two minds about these types of efforts. On the one hand, the third branch certainly needs good public advocates. Judges must maintain an air of impartiality to preserve their legitimacy, and that typically precludes them from responding to attacks, even if a response would ordinarily be justified. On the other hand, standing up for the courts must be done carefully or it can become counterproductive. In an age where almost anything can be politicized, the wrong choice of words, or the advocate’s own political views, can cause more harm to the court than good. As is often the case with public advocacy, the direction and tenor of the conversation is not entirely within the advocate’s control.
To sort through this issue more carefully, I like to remind myself of some facts about court and judicial “speech” generally.
Losing the Scholarly Pose
Law professors are likely to be thrown off their game by Rules for a Flat World by Gillian Hadfield and The Future of the Professions by Richard and Daniel Susskind. The reason is that these books have tremendous scholarly rigor, yet the authors are not writing to advance an academic literature. Instead, they are speaking to us as political and social actors. They are telling us that the legal institutions that we operate within – and take for granted like the air we breath – are either withering away due to seismic shifts in technology (the Susskinds) or are on a collision course with complexity wrought by globalization and a rapidly flattening world (Hadfield).
A standard scholarly critique is therefore beside the point. The threshold issue is whether the authors are mostly right or mostly wrong. The answer to that question determines whether we need to engage as political and social actors with more existential questions regarding (a) which institutions we build, (b) which institutions we work very hard to preserve, and (c) which institutions we withdraw from or tear down.
Personally, I think the Susskinds and Hadfield are mostly right. The issues raised by the Susskinds and Hadfield remind me of an earlier time nearly 25 years ago when the intelligentsia on both the left and right ducked similarly hard questions – ones that I believe are now very much connected to the rise of Trumpland. To make my point, I need to tell a personal story.
Hernandez v. Mesa argument
Just finished the argument in Hernandez v. Mesa (shooting across the Mexican border). A couple quick notes:
The argument was dominated by Justices Breyer and Kagan, with fewer questions from the Chief or Kennedy and even fewer from Justice Alito, who I would have expected to challenge the petitioner more than he did. On that note: At one point, the transcript shows Kagan beginning to ask a question when the Chief jumped in to call on Justice Kennedy (who, according to the transcript, had not begun to say anything). I want to hear it on audio. The Chief often plays traffic cop during arguments,* although this was the first time I have seen him do it without an apparent verbal signal that someone was trying to speak.
[*] An interesting research question: Is he more likely to "call on" a male Justice, especially over a female Justice? It feels that way from the individual examples I notice. I wonder if a regularized study would bear that out.
Qualified immunity was not discussed much, only a couple of questions from the Chief and Kennedy. One of them asked whether qualified immunity accounts for different plaintiffs--that is, if case law establishes that X violates the Constitution, can courts distinguish that precedent (to find the right not clearly established) when the identity of the plaintiff subjected to X is different.
Finally, Kagan and Breyer both pushed back against the idea that Bivens must be "extended," at least for Fourth Amendment excessive-force claims to recognize a cause of action. Kagan suggested that Bivens should be understood as allowing Fourth Amendment claims unless it arises in the military context. And Kagan pushed hard on the absence of an alternative remedy here, seeming to suggest that we should not even look at special factors if the plaintiff is left entirely without a remedy. These ideas, if followed, would pull the Court back from where it has gone with Bivens in the past two decades, similar to the vision Justice Ginsburg espoused in her dissent in Wilkie v. Robbins.
Thursday, February 23, 2017
Third Annual Civil Procedure Workshop (Reposted)
The following is re-posted on behalf of Brooke Coleman (Seattle), David Marcus (Arizona), and Elizabeth Porter (Washington).
We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.
The Federal Circuit and "Patent Exceptionalism": Part II
As discussed in Part I of this series, the Federal Circuit is often criticized for treating patent cases exceptionally, particularly with respect to procedural issues. The Federal Circuit’s approach to personal jurisdiction in patent declaratory judgment (DJ) actions is a good example. Most patent suits are initiated by a patent owner suing an accused infringer for allegedly infringing one or more of its patents. However, a small percentage of patent suits are initiated instead by the accused infringer. In those cases, the accused infringer sues under the Declaratory Judgment Act seeking from the court a declaration that its products do not infringe the defendant’s patent and/or that the patent in suit is invalid. Oftentimes, an accused infringer files a DJ action upon receiving a demand letter from the patent owner alleging infringement and threatening a lawsuit if a license agreement is not entered. The demand letter is generally received by the accused infringer in the state where its principal place of business (PPOB) is located. Under a traditional minimum contacts analysis, an accused infringer that receives a demand letter at its PPOB should be able to sue in its home state because (1) defendant has purposeful contacts with the state (it sent the demand letter there), and (2) those contacts (the letter) gave rise to the plaintiff’s DJ action. So, unless there’s a “compelling case” that the exercise of jurisdiction is unfair, the defendant is subject to personal jurisdiction.
In Red Wing Shoe Co. v. Hockerson Halberstadt, Inc., 148 F.3d 1355 (Fed. Cir. 1998), however, the Federal Circuit created a special rule for such situations holding that the exercise of jurisdiction in these cases is never fair because otherwise patent owners would be discouraged from sending demand letters, which, in turn, would discourage settlement. For the past twenty years, the Federal Circuit has followed and even expanded on Red Wing Shoe holding that other types of contacts (e.g., in-person settlement negotiations) also don’t “count” for personal jurisdiction purposes. See Autogenomics, Inc. v. Oxford Gene Technology Ltd., 566 F.3d 1012 (Fed. Cir. 2009). In a recent decision, Xilinx Inc. v. Papst Licensing GmbH & Co. KG, the Federal Circuit has changed course, but hasn’t righted the ship quite yet.
In Xilinx, patent owner Papst, a German company, sent demand letters to Xilinx in California. Moreover, two Papst representatives met with Xilinx representatives in California to negotiate a license. When negotiations failed, Xilinx filed a DJ action, Papst moved to dismiss, and the district court—not surprisingly—granted the motion under Red Wing Shoe and Autogenomics. Amicus briefs were filed in support of Xilinx’s appeal, including by a group of 34 patent and civil procedure professors. In an opinion by Judge Dyk (joined by Chief Judge Prost and Judge Newman), the Federal Circuit reversed and held that Papst was subject to specific jurisdiction in California. The good news is that the Federal Circuit took a traditional approach to the personal jurisdiction analysis, as we urged the court to do in our amicus brief, and as I have advocated for in my work. The bad news is that the court distinguished Red Wing Shoe and so its principle survives (of course, the panel wasn’t in a position to overrule Red Wing Shoe). Another problem is that there now appears to be a conflict in Federal Circuit case law on this issue because the facts of Xilinx and Autogenomics are very similar, yet the results are different. As other commentators have noted, unless the Federal Circuit hears the case en banc or the Supreme Court intervenes, there is going to be confusion among litigants and district courts going forward.
Wednesday, February 22, 2017
Burning your own cross on your own lawn?
A couple in Stamford, CT had a racial slur spray-painted on their garage door. Convinced that the police are not doing enough to investigate the incident, they have refused to paint-over or cover the word. In response, the town is moving to cite them for having blighted property, which would result in a fine of $100/day. The NAACP has gotten involved, although the stories do not (yet) mention the First Amendment.
That citation and fine should raise First Amendment problems. Although the blight ordinance is content-neutral, leaving the word on the garage is expressive in several respects: 1) the word has obvious political content; 2) the homeowners can be seen as reappropriating someone else's hate speech;and 3) the purpose behind their actions is itself expressive, as an act of protest against what they see as police wrongdoing. Plus, the blight ordinance is not being applied content-neutrally here--the conclusion that the garage is blighted is justified only with reference to the content or message expressed by that word.
Intentional walks and limiting rules
Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.
Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).
The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).
Update: This, on everything wrong with the rule change.
Tuesday, February 21, 2017
Barnett & Bernick: Good-Faith Constitutional Construction
I spent last weekend at the University of San Diego’s annual originalism works-in-progress conference, which was, as always, excellent and thought provoking. In particular, Michael McConnell presented a draft of his very, very impressive paper The Logical Structure of Article II, and Mitch Berman successfully parried all comers in defending his insightful paper Our Principled Constitution. I am moved to comment briefly, however, on another paper—Randy Barnett and Evan Bernick’s The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction—and particularly on some aspects of the discussion that ensued.
The paper attempts to flesh out the undertheorized “construction zone” in New Originalist interpretive theory. As a quick refresher, central to that theory is the “interpretation-construction distinction,” which posits two distinct phases of constitutional explication. In the first, “interpretation,” phase, the judge endeavors to discover, as an empirical matter, the text’s “communicative content” at the time of ratification. In the second, “construction,” phase those empirical semantics should constrain the text’s “legal content” as applied to a discrete controversy.
Barnett & Bernick point out that this “construction” phase has drawn a good deal of criticism from other originalists for the latitude it seems to afford judges, particularly in cases where no determinate communicative content exists to provide constraint. They thus hope to use the concept of fiduciary good-faith to cabin potential judicial freewheelers in the “construction zone.” The idea is that judges should construct legal meanings that, to the extent possible, harmonize and promote the Constitution’s “letter” and its “spirit.” To put it (perhaps) in Scott Shapiro’s terminology, the judge should make a genuine effort to carry out the framers’ and ratifiers’ “plan.”
Jack Getman on "The Continuing Mischief of the Linn Case"
[The following is a guest post from my UT colleague Julius Getman, who, among many other things, is the author of the recent book, The Supreme Court on Unions.]
In September of last year, a Texas jury, on the basis of erroneous instructions from the judge, ordered an SEIU local union of janitorial workers to pay $5.3 million in damages to a cleaning company called Professional Janitorial Services (“PJS”). This union-destroying order was based on statements made years ago as part of the Houston Justice for Janitors campaign, a campaign that succeeded, against enormous odds, in winning contracts for building cleaners in a notably hostile jurisdiction.
The implications of the verdict are devastating. Local unions of low-wage employees cannot pay multi-million dollar jury verdicts and continue to function (as evidenced by the recent bankruptcy filing of the union defendant in the PJS case), If permitted to stand the Houston verdict will inevitably have a chilling effect on labor speech during organizing campaigns. And unions must be able to organize effectively’ during these trying times, if the labor movement is to survive.
Defamation verdicts in state courts like that against the Houston janitors call for a long-overdue reexamination of the Supreme Court’s unfortunate decision in Linn v. Plant Guard Workers, 383 US 53 (1966). The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organizing drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was “limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false.” Although he recognized the importance of a broad right of speech generally in labor disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a ‘merely peripheral concern of the Labor Management Relations Act.’”
Four justices dissented. They pointed out that the Courts standard was vague and could easily be interpreted to cover actions intended to be protected by the National Labor Relations Act by simply pleading that the offending statements were made with malice. And they predicted accurately that the majority opinion ‘both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.’
The recent PJS verdict illustrates the wisdom of the dissenting justices and the danger to unions implicit in state court defamation suits arising from union organizing efforts. The statements (circulated in fliers and other campaign materials were directed at the legal rights of workers . They described allegations of actual PJS employees in a then-pending Fair Labor Standards Act case and in unfair labor practice proceedings before the National Labor Relations Board. The ultimate goal of the union’s statements and actions was not to inflict economic harm on PJS but to establish a collective bargaining relationship with it – a goal promoted by Section 2 of the NLRA. Far from being evidence of malice were the very sort of speech protected by the US Constitution and Section 7 of the NLRA. The trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the US Constitution and instead encouraged the jury to find defamation on the basis of irrelevant material. For example:
- The trial court allowed the company’s lawyers (over union objection) to rest the bulk of their case on two completely irrelevant and prejudicial pieces of evidence that should never have been admitted—an outdated SEIU “campaign manual” that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen, and an unrelated lawsuit by a different employer in a different jurisdiction alleging different claims against SEIU arising out of a different campaign that had not even begun as of 2006.
- The trial court presented the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the court itself. Thus, an accurate union statements that “A new lawsuit filed on behalf of current and former employees of [PJS] charges that the company engaged in unlawful business practices and violated federal law” was reformulated in the judge’s question to the jury “Did the SEIU Local 5 disparage the business of PJS by publishing that PJS systematically failed to pay its employees for all hours worked?”
Similar errors abound. It is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. The wisdom of the dissenting Linn Justices was once more illustrated. It is time to either overrule the Linn decision or to provide for more careful regulation of state court defamation in cases arising from union organizing campaigns.
Fortunately, the union has indicated it will appeal and raise many of the issues identified above. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.
JOTWELL: Lahav on Coffee on entrepreneurial litigation
The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing John C. Coffee, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press). Very timely book and review, with aggregate litigation again in the crosshairs.
Deus et Machina - A Response to the Susskinds (Mostly) and Hadfield
My friend and dean Andy Perlman beat me to the punch with the Yogi Berra-ism about the difficulty of prediction, particularly when it’s about the future. I had the chance to dig into the two books under discussion here – The Future of the Professions, by Richard and Daniel Susskind, and Rules for a Flat World, by Gillian Hadfield. But the stars also aligned to have Richard speaking a few days ago in the Harvard Law School Center on the Legal Profession’s Speaker Series, down the street from my house. And it happens that I’m speaking on my book, Beyond Legal Reasoning: A Critique of Pure Lawyering, in the same series on April 4.
There is a connection to all of this, and it has to do with a certain kind of prediction, particularly one that involves any conversation about artificial intelligence, thinking, and consciousness. It is more sophisticated, I think, than arguing about God, but just as unresolvable. Here’s what I mean. My next-door neighbor in Cambridge, David Haig, is a leading evolutionary biology theorist. From time to time, we engage, usually accompanied by an adult beverage, in conversations about the so-called “hard question of consciousness” – i.e. whether there is a reductive scientific explanation of one’s unique sense of inner experience. It is a subject still out there at the edge of science and philosophy. Not only has it not been resolved, but it has engendered some gossip-column-worthy instances of philosophers behaving badly.
My friend David tends toward the side of the argument that there will be an explanation; I, on the other hand, have a hard time seeing how science gets around the built-in paradox. Both of our views hang on an unprovable belief about the future, and to a significant extent, it’s a trivial problem. When and if somebody comes up with the knock-down scientific (i.e. falsifiable) theory of inner experience, I will gladly tip my hat and acknowledge my prediction was wrong. Until then, it simply stays unresolved.
A few minutes before noon at Harvard, Richard was by himself waiting for the audience to show, so I introduced myself. I told him (with a fair amount of chutzpah, given that he’s Richard Susskind and I am, well, just me) I still couldn’t decide if what he was saying was profound, on one hand, or obvious and trivial, on the other. He took that with good humor. I think it is beyond question, as Richard would agree, that technology will indeed replace everything that it is capable of replacing. As a case in point, while Richard was speaking (I confess), I was multi-tasking, using my iPhone to review a residential real purchase agreement for my son and daughter-in-law’s move to Cincinnati, prepared by the broker situated there, posted on an app called Dotloops, reviewed by me off of a mobile device in Cambridge, and then signed digitally (via Dotloops) by my kids in New Haven and Bridgeport, respectively, after a series of text messages that confirmed I was okay with it.
I’m still inclined to the obvious end of the continuum, mainly because I think Richard and Daniel, while writing a fabulously interesting book, and delivering a well-deserved kick in the pants to all the troglodytes, have begged two hard questions.
Legal Education in the 21st Century
I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark. In that post, I left open the question of how law schools should respond to this emerging new reality. I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.
How many lawyers?
The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?
There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here. I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago. Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years. Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question.
Of course, the same could be said about nearly every other form of professional education. As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades. The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.
What should law students learn?
What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught. This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?
Monday, February 20, 2017
The Future of Law, Innovation and Disruptive Technologies
I want to thank Prawfs and Dan Rodriguez for organizing this symposium. I teach at the University of Florida. This includes both law school students and students in our College of Health and Human Performance (I always teach an overload for no additional compensation). Further, I teach a short course every year at Northwestern’s Master of Science in Law program – an innovative program which provides instruction in law, business and technology to non-lawyer professionals who desire some amount of legal astuteness in their careers. One day a week, I also serve as Senior Of Counsel at Wilson Sonsini Goodrich & Rosati, which helps to keep me up to date on legal practice innovations.
The current symposium is a way for us to think about the future of legal education – both for lawyers and non-lawyers. In many ways, both books (Richard Susskind & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy) suggest that the legal professional is in need of change. While most schools make changes at the margins, perhaps we should push for more significant change given these thought provoking books.
Susskind and Susskind suggest that we may be at the end of professional services firms because of various changes to the economy, including increased automation due to technological progress. This is only partially correct. Law has become a highly differentiated product. The low margin work that is a commodity product can be taken over by non-lawyers due to technology or competition from non-lawyers. Indeed, data shows that the area in which jobs have not recovered has been among solo practitioners. Many of the solos and small firm practitioners essentially were the equivalent of the live tax preparer at H&R Block – they provided the type of services that people could figure out on their own. Increasingly, many people use online tax services (including online H&R Block) instead of live services. Replace online tax services with online legal services and you have an understanding of how commodity legal work is a fundamental problem for those law schools that produce commodity lawyers (typically Tier 3 and Tier 4 schools). For such students who go into solo or small firm practice, the future may not look particularly good as technological innovation threatens such jobs.
In contrast, there will remain a place in law for higher margin complex work that cannot be automated via the internet and for which there are significant barriers to entry for non-lawyers such as accounting firms. It is the higher margin work such as complex litigation and regulatory work as well as sophisticated transaction where the legal profession will continue to have comparative advantage. Think, for example, of highly leveraged teams of lawyers that work on front page Wall Street Journal type deals. Because of the complexity of such deals, there will be significant number of M&A, corporate governance, antitrust, and tax lawyers in multiple jurisdictions who are necessary for the future of the practice of law. This work cannot be replaced by Big 4 accounting firms nor other people trained in fields other than law but who do the day to day marketing and supply chain contracts or legal and regulatory compliance on a daily basis.
In some areas, there is growth in law (and legal services) and this goes against the idea that the profession of law is at risk. In fact, as laws themselves in the regulatory state get longer and more complex, this is creating new opportunities for both lawyers and non lawyers (such as accounting and consulting firms and non-legal regulatory specialists) to generate new types of work based on new regulatory requirements that did not exist a decade ago. Susskind and Susskind also do not address that sometimes it is technology itself that creates new demand for law such as regulatory and litigation work surrounding issues around big data or IP litigation and mass tort law regarding issues like driverless car technologies. Of course, the problem with law schools is that schools underserve the growing demand for compliance and technology related courses. Many law schools also lack requirements for basic financial literacy for their students, which would allow students to better apply such learning to how best to solve legal problems based on economic problems.
Susskind and Susskind predict that professions in general are in trouble. For many of the same reasons, I think that their story is incomplete. Let’s take the example of a different profession – live music. Recorded music had a much smaller share of total music revenue in 1900 than today. There were no radio broadcast and no TV shows or movies that had live music. Professional musicians within the arts had prestigious jobs. However, even today there is still demand for live music because the experience is different than that of recorded music. Indeed, major performing artists that in a pre-Napster era may have made most of their revenue from their music catalogues now make their money off of their live shows.
Hadfield’s book is more nuanced and analytical than the Susskind & Susskind book. It is worth reading cover to cover as Hadfield offers a sophisticated analysis of how the world is changing law and its organization. One significant contribution that she makes is to note that the legal infrastructure has been too centrally managed and does not respond to market forces. At one point, she asks, “Where are the garage guys in law?” Part of the reason for the lack of innovation is because of the rigidity and high entry barriers that our legal professional organizations have set up. Hadfield suggests therefore that the legal profession has opened itself up it attack from disruptive technology along the model of what Clay Christensen has written about in his books.
Hadfield’s solutions are sensible – open up and properly regulate legal markets to promote innovation. Solutions include shifting risk to organizations better able to take on risk than traditional lawyer owned law firms and allowing for a network arrangement akin to the Big 4. Many prohibitions such as practice restrictions, fee splitting, advertising, etc., she explains, create a narrower possible business model for law firms than other service firms. Ultimately, Hadfield identifies three areas in which legal organization should be transformed” licensing entities to be legal providers, licensing multiple legal professions, and right regulation. Hadfield’s work is thought provoking. What is more, she may be right.