Volume 168

Essays

Did the longest government shutdown in United States history this past winter constitute a severe threat to a functioning and independent federal judiciary? In short, yes. From the vantage point of a district court’s chambers, we experienced firsthand the uncertainty that almost weakened the federal judiciary when Congress and the President were at odds over the budget, threatening the judicial branch of the government with shrinkage or closure. This Essay asserts a viable legal theory—we call it a “theory of necessity”—to prevent any constitutional crisis caused by a future government shutdown. This theory invokes four building blocks of well‐established legal doctrines that, when connected, pave a path to secure the judicial branch’s autonomy. The theory of necessity requires the legislative and executive branches to recognize their constitutional obligations to fund the judicial branch, without interruption.

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.

The University of Pennsylvania Law Review Online presents the second installment of “Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar.” The series continues with Professor Charles Geyh’s response, “Considering Reconsidering Judicial Independence.” Professor Geyh draws on Professor Burbank’s idea that judicial independence and judicial accountability are merely “two sides of the same coin” and goes further, positing that the two‐sided coin and its expected cyclical return to equilibrium is a “Hallmark after‐school special” version of the reality, and that curbing the erosion of the public perception of the judiciary will take more than reliance on that cycle perpetuating.

Primarily, Professor Geyh shows that in order to slow and stop the downward spiral, we must wean ourselves off the “antiquated” approach to judicial independence and accountability—the rule‐of‐law paradigm—by turning toward of a more robust “legal culture” paradigm which takes into account the fact that, indeed, judges’ decisions are necessarily subject to extra‐legal influences.

The University of Pennsylvania Law Review Online presents the third installment of "Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar." The series now switches focus from the academy to the judiciary itself with Judge Marjorie O. Rendell's response, "Making Heads or Tails of Judicial Independence: A Response to Professor Burbank." In this essay, Judge Rendell brings forth a unique perspective on judicial independence and accountability from the bench, building on Professor Burbank's idea that judicial independence and judicial accountability are merely "two sides of the same coin" and going further by shining light on some of the intra-judiciary mechanics that keep judges forthcoming in their judicial administration. Judge Rendell also warns of the perils of reform aimed at making judges more accountable to political actors and their constituents, which may threaten to undo the benefits garnered by our democracy from an independent judiciary. Finally, Judge Rendell emphasizes the importance of civic education in our society, and the "need to teach our children about our system and how the independence of the judiciary is a valued, animating principle that must be preserved and protected."

Invented in 1986 and now a prominent feature of the mass tort landscape, Lone Pine orders require plaintiffs to provide to the court prima facie evidence of injury, exposure, and specific causation—sometimes early, and usually on pain of dismissal. Though they’ve taken root in a hazy space outside of the Federal Rules of Civil Procedure, these case management orders are frequently issued, and they play an important role in the contemporary litigation and resolution of mass torts. But although Lone Pine orders are common, potent, and increasingly controversial, they have mostly fallen under the academic radar. Even their key features are described inconsistently by commentators and courts. This Essay pulls back the curtain. Drawing on a unique hand‐coded dataset, this Essay describes the origin and evolution of Lone Pine orders, sketches poles of the debate surrounding their use, and offers empirical evidence regarding their entry, content, timing, and effect.

The University of Pennsylvania Law Review Online presents the fourth installment of "Independent and Accountable Courts in Perilous Times: Perspectives from the Academy, the Bench, and the Bar." Now the series gains perspective from a practitioner in the courts with Michael Traynor's response, "Some Friendly Suggestions for the Federal Judiciary About Accountability." In this essay, Traynor focuses on the fundamental necessity of independent and capable judging and the current weakening of political safeguards meant to bolster independent and capable judging. Because of this weakening and recent events that have highlighted it, Traynor argues that new safeguards must be put in place by the judiciary itself in order to retain its independence at a time when it is most needed.

Responses

Professors Ayotte & Morrison argue in their recent article from Volume 167 of The University of Pennsylvania Law Review that "the use of 'company-specific' or 'unsystematic' premiums when calculating the discount rate for future cash flows" has "no reliable basis in finance theory or evidence. These are nothing more than arbitrary add-ons that drive the company's reported value downward." They would therefore have judges "rul[e] out problematic assumptions, such as company-specific risk premia" in discount rates and "consistently apply the [Capital Asset Pricing Model (CAPM)]." Indeed, they argue that "methods that allow for 'company-specific' premia . . . . fail the Daubert standard of reliability." Ayotte & Morrison would be on firm ground if they restricted their claim to the valuation of the equity of the handful of publicly traded firms that file for bankruptcy. However, they do not, and both finance theory and evidence support the use of company specific risk premia in other markets. Failing to include these premia will drive the company's reported value upward, and in bankruptcy overvaluation may be more harmful than undervaluation because those disappointed with a low judicial valuation can sometimes turn to the market for a second opinion.

Joseph Fishman and Deepa Varadarajan address a critical question in their new article, Similar Secrets: should trade secret law prohibit substantially dissimilar uses of trade secret information by those who took that information through improper means or in violation of a duty of confidentiality to the information’s owner, particularly when those dissimilar uses result in innovative new pursuits of high social value? Under current doctrine such an action would likely lead to a viable claim of trade secret misappropriation. But should this type of “retooling” really be discouraged by trade secret law?

This Response shows that the article’s thesis—that trade secret law should imitate copyright law’s willingness to permit substantially dissimilar uses of content—conflicts with trade secret law’s fundamental purpose: to protect the integrity of secret information. Whereas Fishman and Varadarajan have turned to copyright law for help, it makes more sense to focus on improving the doctrines we already have. Improving existing doctrines will do more to ameliorate concerns about hindering innovative new uses, while maintaining trade secret law’s fundamental goals.

In Settling the Staggered Board Debate published in the University of Pennsylvania Law Review, we concluded that the staggered board is not in and of itself value-increasing or decreasing and that "[t]he staggered board debate is . . . not about per se rules but whether the staggered board is right for individual firms." We thought our conclusions settled the debate. We may have spoken too soon. In a response published in the University of Pennsylvania Law Review Online, Professors Cremers, Sepe, and Masconale assert that our analysis is flawed for two reasons: First, that our results are "based on statistical tests that have 'poor power,'" claiming that the methodology we used in Settling the Staggered Board lacked robustness and was predisposed to its conclusions; Second, that "the adoption of a staggered board is associated with a positive increase in firm value," even taking into account the results in Settling the Staggered Board Debate. In this Response (our response to the response) we reject the argument that our previous results were driven by poor power. And as to the argument that the staggered board is, on average, still associated with an increase in firm value, these conclusions rely on suspension of the efficient market hypothesis, since our responders' results only occur years after the publicly announced adoption of the staggered board. Ultimately, our results again support the conclusion that the staggered board in and of itself has no effect on average firm value, reaffirming our original conclusion that it is firm characteristics which drive prior studies with respect to staggered board value.

Comments

The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” For much of America’s history, the federal courts have interpreted this constitutional guarantee as protecting the right of a criminal defendant to confront, face-to-face at trial, any witness accusing the defendant of a crime. In its landmark 1990 decision, Maryland v. Craig, the Supreme Court reversed course and severely restricted the confrontation rights of criminal defendants. The Court, in upholding the use of closed- circuit television testimony of a child witness who was not present in the courtroom with the defendant, stated that the Confrontation Clause does not “guarantee[] criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.” Craig was undoubtedly a significant blow to the rights of criminal defendants across America. Craig does not represent an insurmountable barrier for those who find themselves on the sharp end of a criminal accusation.
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