Essay

Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower

Essay

The University of Pennsylvania Law Review Online presents the first installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar,” a series of articles, essays, and commentaries addressing the current state and direction of the judiciary. Contributors include scholars, judges, and practitioners whose extensive experience and diverse perspectives illuminate the relationship between judicial independence and accountability, as well as the forces which shape that relationship. Contributions to the series will be published throughout the summer and fall. The series begins with Professor Stephen B. Burbank's “Reconsidering Judicial Independence: Forty Years in the Trenches and in the Tower.” From his experiences as a Supreme Court clerk during Watergate, as a reporter on the judicial committee implementing the Judicial Conduct and Disability Act, and finally as a law professor deeply engaged in the study of judicial power, Professor Burbank suggests several lessons on how judicial accountability is essential to maintaining an independent judiciary.

Trusting in the integrity of our institutions when they are not under stress, we focus attention on them when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this Essay, I aim to provide practical context for some of the important lessons to be learned from the periods of stress for the federal judiciary that I have observed as a lawyer and concerned citizen and to provide theoretical context for lessons I have deemed significant as a scholar.

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Considering Reconsidering Judicial Independence

Essay

The University of Pennsylvania Law Review Online presents the second installment of “Independent and Accountable Courts in...

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Avoiding Legal Scrutiny: The U.S. Release of a Suspected ISIL Fighter to Avoid a Legal Challenge to the War on ISL

Essay

In September 2017, an American citizen known as John Doe, who had been fighting for ISIL in Syria, was turned over to the American...

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Trolls & The Preemption Dilemma

Essay

Patent trolls account for most patent assertions and are often blamed for the increased costs of patent litigation. Congress and the courts have tried to wrangle the abusive practices of trolls. Through a post‐grant review system, Congress tried to combat the growing litigation costs by streamlining invalidity challenges. The Supreme Court has also tackled the patent‐troll problem in seminal remedy and venue cases, hampering trolls’ ability to get injunctions and use certain venues. Yet the problem persists. Although Congress and federal courts recognize and sometimes try to alleviate the patent‐troll problem, what can states do to protect small‐ and medium‐sized businesses from these pesky trolls? For now, probably nothing. The Federal Circuit, through a preemption analysis influenced by the First Amendment’s Petition Clause, often invalidates state laws that could regulate the problem. Still, states continue to try: most states have passed statutes regulating demand letters asserting patent infringement. These state anti‐patent laws’ goal is to protect companies and consumers from patent trolls. Regardless of whether the current state anti‐patent laws will effectively deter egregious patent‐troll behavior, the Federal Circuit’s current preemption doctrine doesn’t seem to let states promote a legitimate state interest— protecting businesses from bad‐faith behavior so that the businesses can innovate.

But is the Federal Circuit properly reading Supreme Court precedent on preemption and the Petition Clause? Or are they unnecessarily developing a rigid rule to help ex ante patentholder decisionmaking? As this Comment argues, even though the Federal Circuit has improperly morphed the Noerr test into conflict preemption and doesn’t effectively analyze whether Noerr applies to prelitigation communication and non‐antitrust claims, the Federal Circuit’s results aren’t far off. There’s good reason for petition immunity to apply to prelitigation activity, like demand letters, but the analysis should be separate from conflict preemption. It turns out that the Supreme Court’s rigid approach to the sham exception is partly to blame.

This Comment makes three contributions. The first contribution is putting a state anti‐patent law through a full implied‐preemption analysis in accordance with Supreme Court precedent. The second contribution is giving and applying a proper framework to determine whether the Petition Clause applies to prelitigation communication and non‐antitrust claims. The third contribution is suggesting a flexible petitioning‐immunity framework that will leave states room to regulate patent‐troll demand letters.

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Judicial Independence Under Attack: A Theory of Necessity

Essay

Did the longest government shutdown in United States history this past winter constitute a severe threat to a functioning and...

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PHH Corporation v. Consumer Financial Protection Bureau: Financial Fairness and Administrative Anxiety

Essay

In PHH Corporation v. Consumer Financial Protection Bureau, the D.C. Circuit upheld the constitutionality of the Consumer...

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Following the Letter of the Law Into Absurdity: Why the Supreme Court’s Severability Rule Does Not Preclude Determining an Arbitration Provision’s Enforceability Under the Law Supplied by an Agreement’s General Choice-of-Law Clause

Essay

A new hire signs an employment agreement. The agreement contains an arbitration provision. Embedded in the arbitration provision is a one‐sentence delegation clause granting the arbitrator exclusive authority to decide threshold issues of arbitrability, including whether the arbitration provision is valid and enforceable. The agreement has a general choice‐of‐law clause providing that California law applies to the entire agreement, including the arbitration provision and delegation clause. An employee based outside California sues the employer in court and argues that the arbitration provision and delegation clause are unenforceable. Should the court apply California law or the law of the employee’s home state to the enforceability analysis? Several courts have confronted and wrongly answered that question in recent litigation involving Uber. Why they got it wrong—their misapplication of the Supreme Court’s severability rule—is the subject of this essay.

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Rogue Retailers or Agents of Necessary Change? Using Corporate Policy as a Tool to Regulate Gun Ownership

Essay

The tragedy of the Parkland, Florida high school shooting shocked the nation and sent thousands of student protestors out of the...

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The Disparate Impact Canon

Essay

In early January, the U.S. Supreme Court heard oral argument in Husted v. A. Philip Randolph Institute. The case presented a...

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Lessons from DataRescue: The Limits of Grassroots Climate Change Data Preservation and the Need for Federal Records Law Reform

Essay

Shortly after Donald Trump’s victory in the 2016 Presidential election, but before his inauguration, a group of concerned scholars organized in cities and college campuses across the United States, starting with the University of Pennsylvania, to prevent climate change data from disappearing from government websites. The move was led by Michelle Murphy, a scholar who had previously observed the destruction of climate change data and muzzling of government employees in Canadian Prime Minister Stephen Harper’s administration. The "guerrilla archiving" project soon swept the nation, drawing media attention as its volunteers scraped and preserved terabytes of climate change and other environmental data and materials from .gov websites. The archiving project felt urgent and necessary, as the federal government is the largest collector and archive of U.S. environmental data and information.

As it progressed, the guerrilla archiving movement became more defined: two organizations developed, the DataRefuge at the University of Pennsylvania, and the Environmental Data & Governance Initiative (EDGI), which was a national collection of academics and non-profits. These groups co-hosted data gathering sessions called DataRescue events. I joined EDGI to help members work through administrative law concepts and file Freedom of Information Act (FOIA) requests. The day-long archiving events were immensely popular and widely covered by media outlets. Each weekend, hundreds of volunteers would gather to participate in DataRescue events in U.S. cities. I helped organize the New York DataRescue event, which was held less than a month after the initial event in Pennsylvania. We had to turn people away as hundreds of local volunteers lined up to help and dozens more arrived in buses and cars, exceeding the space constraints of NYU’s cavernous MakerSpace engineering facility. Despite the popularity of the project, however, DataRescue’s goals seemed far-fetched: how could thousands of private citizens learn the contours of multitudes of federal environmental information warehouses, gather the data from all of them, and then re-post the materials in a publicly accessible format?

Federal records laws and policies in the U.S., like the FRA, the Presidential Records Act (PRA) of 1978 and the Freedom of Information Act (FOIA), were created to prevent government administrators from engaging in censorship, lack of transparency, and the destruction of relevant government records. The DataRescue project proves that these laws, in their current iterations, are insufficient in the digital information age, and must be reformed to ensure proper records preservation and access. This Essay describes DataRescue’s efforts and limitations, and examines the FRA, prescribing statutory updates that would safeguard online access to government records, allowing volunteers across the nation to rest easy knowing that climate change data and other information will be preserved through changing presidential administrations.

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