Current Print Issue

Vol. 165, Issue 7

  October 2017

Featured Article

Class Actions and the Counterrevolution Against Federal Litigation

Stephen B. Burbank & Sean Farhang
165 U. Pa. L. Rev. 1495 (2017)

“To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.”

Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2320 (2013) (Kagan, J., dissenting).

Featured Comment

Particularity Discovery in Qui Tam Actions: A Middle Ground Approach to Pleading Fraud in the Health Care Sector

Brianna Bloodgood
165 U. Pa. L. Rev. 1435 (2017)

Health care fraud in the United States is policed in a unique enforcement landscape. The False Claims Act, one major piece of that landscape, grants private citizen whistleblowers the ability to sue on behalf of the government to remedy fraud. Plaintiffs in these qui tam actions are subject to procedural requirements characteristic of any federal civil fraud lawsuit, including the rigid pleading standard of Federal Rule of Civil Procedure 9(b). The Supreme Court has repeatedly declined to resolve a circuit split as to the precise particularity of the claim required under the rule; some circuits require a representative sample of false claims for a complaint to survive a motion to dismiss, while others relax the requirement and hold that general allegations supporting a strong inference of fraud will suffice. Ample literature exists in support of the latter, more lenient approach to evaluating a complaint, but little, if any, explores the possibility that a resolution outside the existing dichotomy could optimize results in the health care fraud qui tam context.

This Comment explores one such solution: pre‐merits “particularity discovery” designed to allow a qui tam plaintiff to plead a representative sample of false claims in her complaint. By exploring the merits and shortfalls of the particularity requirement as it applies to False Claims Act qui tam plaintiffs, this Comment first suggests that health care fraud cases may warrant special considerations at the pleadings stage. Then, this Comment uses examples of pre‐merits discovery in other contexts, namely class certification and jurisdictional disputes, to illustrate relevant, albeit imperfect, blueprints for a particularity discovery procedure. Finally, this Comment proposes a framework for ruling on a qui tam plaintiff’s motion for particularity discovery that could operate within the district court’s existing discretion. Because of the importance of remedying health care fraud, this middle ground could provide opportunities for plaintiffs to bring meritorious claims to court without sacrificing the benefits and purpose of the particularity requirement. This Comment will hopefully encourage courts to consider adopting the more rigid representative sample standard for particularity pleading, recognizing that the addition of targeted particularity discovery to the procedure creates a viable middle ground between the two existing approaches to pleading.

Online Exclusives
 Last updated: October 25, 2017


The Sum is More Public Domain than its Parts?: US Copyright Protection for Works of Applied Art Under Star Athletica’s Imagination Test

Jane C. Ginsburg
166 U. Pa. L. Rev. Online 83 (2017)

In Star Athletica v. Varsity Brands, the Supreme Court granted certiorari to resolve confusion in the lower courts regarding the “separability” predicate to copyright protection of decorative features of useful articles. Adopting the Gordian imagery evoked by other appellate courts, the Sixth Circuit in Varsity Brands lamented “[c]ourts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article’s utilitarian function.” Star Athletica involved the “surface decorations” of stripes, chevrons, and color blocks applied to cheerleader uniforms. While the Supreme Court clarified the meaning and application of the “separability” standard for decorative elements of the kind at issue in that case, the decision leaves the knots as tangled as ever when a claim of copyright concerns the entire form of a useful article.


Nondelegation Doctrine in Comparative Context: Britain’s Great Repeal Bill and the Shadow of Henry VIII

Rene Reyes
166 U. Pa. L. Rev. Online 71 (2017)

In their recent article, Keith Whittington and Jason Iuliano marshal considerable evidence for the proposition that the nondelegation doctrine is little more than a myth. The authors review some two thousand U.S. federal and state cases, and acknowledge that “American courts have long recognized a basic constitutional principle that legislative powers cannot be delegated to other political actors. Yet the authors also show that this principle has had remarkably little impact in practice: delegations of lawmaking authority have been upheld at high rates throughout American history by federal and state courts alike. At the Supreme Court level, “[a] review of the Court’s treatment of challenges to federal and state statutes on the grounds that they had impermissibly delegated legislative power to nonlegislative actors does not provide much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order.” In sum, notwithstanding its supposed basis in the American structural commitment to separation of powers among coequal branches of government, nondelegation doctrine has never been of much practical significance in the context of U.S. constitutional law.

But in this Response, I argue that nondelegation principles may prove to be of far greater practical significance in a different context—namely, in U.K. constitutional law. In doing so, I demonstrate that the origins of the nondelegation doctrine long predate the structural constitutional provisions and pre‐New Deal cases highlighted by Whittington and Iuliano. Indeed, questions about legislative delegations of power extend back at least as far as the reign of King Henry VIII. The Tudor monarch’s shadow is so long that parliamentary delegations of authority to amend primary legislation continue to be known as “Henry VIII clauses,” and the prospect of including such delegations in Prime Minister Theresa May’s Great Repeal Bill may well complicate Britain’s ongoing exit from the European Union. Thus, while the nondelegation doctrine may merely be a myth in the United States, it is poised to play a key role in one of the most important constitutional debates in recent memory in the United Kingdom.

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.