Current Print Issue

Vol. 165, Issue 3

  February 2017

Featured Article

The President and the Detainees

Aziz Z. Huq
165 U. Pa. L. Rev 499 (2017)

Entering the White House in 2009, President Barack Obama committed to closing the military detention facility at Guantanamo Bay in Cuba. Eight years later, the facility remains open. This Article uses the puzzle of why Obama’s goal proved so recalcitrant as a case study of separation‐of‐powers constraints upon presidential power. Deploying a combination of empirical, doctrinal, and positive political science tools, it isolates the salient actors and dynamics that impeded Obama’s goal. Its core descriptive finding is that a bureaucratic–legislative alliance was pivotal in blocking the White House’s agenda. This alliance leveraged its asymmetrical access to information to generate constraints on the President. The most significant of these constraints operated through political channels; statutory prohibitions with the force of law were of distinctly secondary importance. The analysis, furthermore, sheds light on why individualized judicial review, secured through the mechanism of habeas petitions under the Constitution’s Suspension Clause, had scant effect. Contrary to standard approaches to the Constitution’s separation of powers, the case study developed here points to the value of granular, retail analysis that accounts for internally heterogeneous incentives and agendas instead of abstract theory that reifies branches as unitary and ahistorical entities.

Featured Comment

Invalidating Issue Preclusion: Rethinking Preclusion in the Patent Context

Stephen C. DeSalvo
165 U. Pa. L. Rev. 707 (2017)

Preclusion is a complex doctrine to apply in any given case, and patent litigation presents no exception. Ever since the Supreme Court ruled in Blonder‐Tongue Laboratories, Inc. v. University of Illinois Foundation that issue preclusion applies to prevent litigation on a patent that previously has been declared invalid in a court of competent jurisdiction, courts have applied issue preclusion summarily to end disputes over previously invalidated patents. But issue preclusion may not be an appropriate procedural tool in all such cases. In fact, analysis of a number of district court opinions demonstrates that some judges may explicitly or implicitly realize the same. This Comment both systematically analyzes the application of issue preclusion in the patent validity context from a doctrinal perspective and addresses significant practical concerns derived from the doctrinal findings. Interestingly, this analysis suggests that the Federal Circuit and most district courts are applying the law of issue preclusion incorrectly and that this practice has significant implications for litigants. Primarily, courts’ treatment of patent invalidity as a whole as a “single issue” for the purposes of issue preclusion is out of line with the application of that doctrine in other areas of civil law. Although the misapplication of issue preclusion is a moot point in most cases where a patent is adjudged invalid and that holding is maintained on appeal, it is of practical significance for simultaneous litigation over a single patent in multiple district courts. A new procedural framework is proposed to remedy the doctrinal and practical problems raised by the current application of issue preclusion in the patent validity context. Instead of entering judgment based on issue preclusion, which is inappropriate in many cases, there are substantial policy concerns favoring either applying claim preclusion, dismissing the plaintiff’s action for failure to state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or simply staying the patent litigation pending final appeal of an earlier proceeding over the same property right.

Online Exclusives
 Last updated: February 23, 2017


Hurricanes, Fraud, and Insurance: The Supreme Court Weighs In on, but Does Not Wade Into, the Concurrent Causation Conundrum in State Farm Fire and Casualty Company v. Rigsby

Christopher C. French
165 U. Pa. L. Rev. Online 99 (2017)

In a recent Supreme Court decision, State Farm v. Rigsby, a homeowner’s house was damaged by Hurricane Katrina. The homeowner possessed homeowners insurance with State Farm and a flood insurance policy that was administered by State Farm on behalf of the federal government. The claims adjusters assigned by State Farm to handle the homeowner’s claim allegedly were instructed by State Farm to misclassify wind damage as flood damage in order to shift State Farm’s own liability for the loss to the federal government. The claims handlers filed a lawsuit against State Farm under the False Claims Act (FCA), which imposes civil liability on any entity who “knowingly presents . . . a false or fraudulent claim for payment or approval” to the federal government. A jury entered a verdict against State Farm in the amount of almost $3.7 million, which included a treble damages award and attorneys’ fees.

Although the case likely will be remembered by most people for the Supreme Court’s consideration of the purpose of the FCA’s requirement that complaints be filed under seal and whether the dismissal of a complaint is an appropriate sanction when a claimant leaks information regarding the complaint that is under seal, the case also should be remembered for turning the spotlight on the concurrent causation conundrum associated with certain insurance claims, particularly hurricane claims where both water and wind cause the losses. The concurrent causation conundrum arises when a loss is caused by both a covered risk of loss and an excluded risk. Although the Supreme Court did not resolve the concurrent causation conundrum in State Farm v. Rigsby, this essay offers two potential solutions to the problem. One, eliminate the flood exclusion in homeowners insurance policies. Two, broadly apply the “ensuing loss” exception to exclusions contained in property insurance policies.


The Decline of the Fish/Mammal Distinction?

Samuel Beswick
165 U. Pa. L. Rev. Online 91 (2017)

The public/private distinction was “slain” in 1982. That year, at the Symposium of the University of Pennsylvania Law Review, Professor Duncan Kennedy set forth his six Stages of the Decline of the Public/Private Distinction, outlining the sequence by which liberal categorizations descend “from robust good health to utter decrepitude.” The article is available here.

Professor Kennedy’s famed article concerned the history of legal thought over the course of the twentieth century. He described that history as one of “decline”—not just of the public/private distinction, but of numerous other distinctions said to “constitute the liberal way of thinking about the social world.” He pronounced on the lifecycle of these ideas and the way in which they—and the public/private distinction in particular—had become unjustifiable in legal thought. It was “[h]ard cases with large stakes” that were the first sign of trouble, precipitating compromise until distinctions all but collapsed, only to be reanimated as “continua” or pro/con “balancing” formulae6 until they became something “we can’t believe in . . . any more.”

In this Essay, I put to one side legal history and turn attention to the process of decline itself. For it is not only legal distinctions that are problematic. There are, indeed, many errant categorizations that fit the story of decline. My target is the so‐called fish/mammal distinction. “Fish,” it will be shown, is an indistinct category. But if it nonetheless remains acceptable for people (and biologists) to speak in terms of fish, might it be okay for people (and lawyers) to speak in terms of private law?

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.