Current Print Issue

Vol. 164, Issue 5

  April 2016

Featured Article

Combining Constitutional Clauses

Michael Coenen
164 U. Pa. L. Rev. 1067 (2016)
Some constitutional questions implicate multiple, overlapping provisions of the Constitution’s text. In resolving these questions, the Supreme Court typically addresses each of the relevant clauses in separate and sequential fashion, taking care not to let its analysis of one clause affect its analysis of any other. But every so often the Court takes a different approach, looking to the clauses in combination rather than in isolation. The Court has sometimes suggested, for instance, that two or more rights‐based provisions might require the invalidation of government action, even where no single provision would do so on its own. The Court has also suggested that a federal law might fall too far outside the scope of Article I and too far within the scope of a rights‐based provision to withstand constitutional attack. And the Court has very occasionally suggested that a congressional enactment might qualify as a necessary and proper means of enforcing multiple enumerated powers at once. In all of these cases, the Court has embraced (or at least tinkered with) forms of what I call “combination analysis”—justifying judicial outcomes by reference to multiple clauses acting together, as opposed to individual clauses acting alone.

This Article presents a systematic examination of combination analysis in U.S. constitutional law. In so doing, it seeks to make four contributions to the burgeoning scholarly literature on the subject. First, the Article collects and taxonomizes existing examples of combination analysis in U.S. Supreme Court doctrine, demonstrating that combination arguments have enjoyed a wider range of application than has thus far been supposed. Second, the Article examines the conceptual structure of combination analysis, revealing some underappreciated functional similarities between combination‐based constitutional reasoning and other more commonly accepted features of public law adjudication (including, for instance, arguments based on constitutional structure and arguments based on the constitutional avoidance canon). Third, the Article sorts through the practical pros and cons of combination analysis, shedding light on the questions of whether and (if so) when courts should advance combination arguments in the course of resolving a particular case. Finally, the Article offers some preliminary guidance regarding the implementation of combination analysis, identifying in particular four different types of “combination errors” that courts should strive to avoid. What emerges from the discussion is the conclusion that combination analysis represents a real and conceptually valid method of constitutional reasoning, which, at least under some circumstances, stands to benefit the development of constitutional law.

Featured Comment

Hitting Reset: Devising A New Video Game Copyright Regime

Drew S. Dean
164 U. Pa. L. Rev. 1239 (2016)
In this Comment, I argue that obtaining and sustaining optimal video game innovation and creativity requires two complementary advancements by the two main actors in the video game copyright space—the U.S. courts and the video game developers themselves. U.S. courts should maintain and build upon recent precedent in the Tetris Holding, Spry Fox, and DaVinci cases and recognize a greater sphere of protectability for game mechanics that is sensitive to copied elements. As I will show, the approaches in Tetris Holding, Spry Fox, and DaVinci strike a functional balance between the competing needs of protecting copyrighted expression and enabling further innovation. The cases also send a signal to clone developers that “cloning” may no longer be shielded from liability. Following these cases, U.S. courts can “rebalance” copyright for video games by revising how the idea–expression dichotomy, the merger doctrine, and the scènes à faire doctrine apply to video games and by expanding the sphere of protectable expression in video games. To that end, independent game developers who create new premises and mechanics should take conscious steps to infuse their software with unique expression to make their works more protectable and fend off clones. Otherwise, they must adopt marketing practices that enable them to more quickly monetize games that will inevitably be cloned. Together, these two sets of changes can foster greater protection for innovative game software and a richer marketplace for consumers, while not overextending the reach of copyright to threaten the iterative innovation that underpins video game development.

In Part I, I present an overview of the video game industry as a whole, with a focus on the increasingly important role mobile gaming plays. In Part II, I discuss the basic elements of copyright doctrine and how case law as applied to video games has evolved over time and shaped the industry. In Part III, I address the potential shifts in case law indicated by the Tetris Holding, Spry Fox, and DaVinci cases. In Part IV, I discuss a recent example of cloning in mobile gaming, and how a modified copyright regime could have led to a more preferable outcome. Finally, in Part V, I suggest steps for video game developers to take in game development to better protect themselves.

Online Exclusives
 Last updated: May 21, 2016


Is the Philadelphia Wage Tax Unconstitutional? And If It Is, What Can and Should the City Do?

Michael S. Knoll & Ruth Mason
164 U. Pa. L. Rev. Online 163 (2016)

Philadelphia, the fifth largest city in the United States with a population over 1.5 million, has a complex and antiquated tax system. The Philadelphia tax system in general, and the City’s business taxes in particular, have long been criticized for driving employers and jobs away from Philadelphia by making it expensive to conduct business in the City. According to Professor Robert Inman of the University of Pennsylvania’s Wharton School, taxes alone make operating a business in Philadelphia 19% more expensive than in the suburbs. And those tax‐induced higher costs have had a dramatic effect. According to Inman, about half of the 300,000 jobs Philadelphia lost between the 1960s and 1990s are attributable to the City’s tax system, which Inman described as “a primary contributor to the city’s decline” over that period.

Although Philadelphia is not the only city facing fiscal challenges, the specific problems Philadelphia faces are not widely shared by other cities. Philadelphia places an unusually large tax burden on highly mobile factors of production, such as capital and labor, and less on fixed factors, most notably land. According to a 2014 report, 66% of Philadelphia’s tax revenue comes from taxing mobile wages and profits. In contrast, for New York and Washington, D.C., the comparable figures are 34% and 35%. And only 17% of Philadelphia’s tax revenue comes from real estate, whereas the corresponding figures for New York and Washington, D.C., are 41% and 36%. Moreover, not only does Philadelphia place an excessively high reliance on taxing mobile factors of production, but the centerpiece of the Philadelphia tax system, the Philadelphia wage tax—which raised more than $1.6 billion in 2014—now faces a constitutional challenge. Several petitions recently filed with the Philadelphia Tax Review Board seek a declaration that the wage tax, one of Philadelphia’s largest sources of revenue and one of its most controversial business taxes, is unconstitutional. Although the cases have not yet been heard, let alone decided, in our view the Philadelphia wage tax—is clearly unconstitutional as currently constructed (as described below). Accordingly, the City will soon face the question whether to save the wage tax by reforming it or eliminating it altogether and replacing it with other sources of revenue.

This Essay explains the constitutional challenge to the City wage tax, describes steps that could be taken to save that tax, and raises the question of whether Philadelphia should save or eliminate its wage tax.


Perverse Incentives, Cost‐Benefit Imbalances, and the Infield Fly Rule

Howard M. Wasserman
164 U. Pa. L. Rev. Online 145 (2016).
Responding to Andrew J. Guilford & Joel Mallord, Time to Drop the Infield Fly Rule and End a Common Law Anomaly

In response to Andrew J. Guilford & Joel Mallord, A Step Aside, Time to Drop the Infield Fly Rule and End a Common Law Anomaly, 164 U. Pa. L. Rev. 281 (2015).

Judge Andrew J. Guilford and Joel Mallord begin their manifesto against the Infield Fly Rule with an unrealistic hypothetical. The Chicago Cubs are at bat in the bottom of the ninth inning of Game Seven of the World Series. They trail by one run and have the bases loaded with no outs. The Cubs’ star hitter lofts a fly ball onto the edge of the outfield grass on the right side, which the second baseman settles under, “shield[ing] his eyes from the blazing sun.”

Guilford and Mallord decry that pursuant to baseball’s historic Infield Fly Rule, the umpire will call the batter out and the runners will likely remain where they are, regardless of whether the second baseman catches the ball. The umpire dictates the outcome of this critical play in baseball’s most important game, not the players and their skill or strategy. And Cubs fans, “on the edge of their seats in anticipation,” must be deflated by the anticlimactic ending.

Speaking as a Cubs fan, however, my reaction to this hypo is “Thank goodness for the Infield Fly Rule.” Without it, this play likely produces an inning‐, game‐, and World Series‐ending triple play. Or, only slightly better, a double play on the lead base runners, leaving the Cubs with two outs and runners on first and second, still down one run. On the other hand, with the Infield Fly Rule, the Cubs still have the bases loaded and still have only one out. In other words, with the Infield Fly Rule, my team still has a pretty good chance to score runs, win the game, and win the World Series for the first time in over a century; without it, my team’s chances plummet.

Case Note

Of Laundering and Legal Fees: The Implications of United States v. Blair for Criminal Defense Attorneys who Accept Potentially Tainted Funds

Philip J. Griffin
164 U. Pa. L. Rev. Online 179 (2016).

“In the common understanding, money laundering occurs when money derived from criminal activity is placed into a legitimate business in an effort to cleanse the money of criminal taint.” 18 U.S.C. § 1957, however, prohibits a much broader range of conduct. Any person who “knowingly engages” in a monetary transaction involving over $10,000 of “criminally derived property” can be charged with money laundering under § 1957.

Because § 1957 eliminates the requirement found in other money laundering statutes that the government prove an attempt to commit a crime or to conceal the proceeds of a crime, § 1957 “applies to the most open,

above‐board transaction,” such as a criminal defense attorney receiving payment for representation. In response to pressure from commentators, Congress passed an amendment two years after § 1957’s enactment defining the term “monetary transaction” so as to exclude “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.”

The statutory safe harbor found in § 1957(f)(1) has successfully immunized defense attorneys from money laundering prosecutions. However, United States v. Blair raised concerns among the criminal defense bar because of its holding that an attorney‐defendant was not entitled to protection under § 1957(f)(1). In Blair, an attorney‐defendant was convicted of violating § 1957 for using $20,000 in drug proceeds to purchase two $10,000 bank checks to retain attorneys for associates of his client. Noting that Sixth Amendment rights are personal to the accused and that Blair used “someone else’s money” to hire counsel for others, the Fourth Circuit held that his actions fell “far beyond the scope of the Sixth Amendment” and were not protected by the safe harbor. In his strongly‐worded dissent, Chief Judge Traxler criticized the court for “nullif[ying] the § 1957(f)(1) exemption and creat[ing] a circuit split.”

This Case Note discusses the implications of Blair for the criminal defense attorney who accepts potentially tainted funds and proposes a solution to ameliorate its unintended consequences. First, Part I provides relevant background information by discussing the money laundering statutory framework, the criticisms leveled at the framework as it was written, the Congressional response to that criticism, and § 1957(f)(1)’s application up until Blair. Next, Part II describes the Blair decision in detail and examines its implications. Part III then proposes a novel solution to the problems it created. Finally, the Case Note concludes with a brief word of practical advice for the criminal defense bar.