VOLUME 166, ISSUE 4 march 2018

Articles

The Decline of Supreme Court Deference to the President

Lee Epstein & Eric A. Posner

According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the solicitor general’s office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate—barely 50&percnt;. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to the growing self-assertion of the Court and the development of a specialized, private Supreme Court bar. We find no evidence for two other possible explanations—that the trend is due to greater executive overreaching than in the past, or to ideological disagreements between the Court and recent presidents.

Sovereigns, Shopkeepers, and the Separation of Powers

Jon D. Michaels

For decades, we have examined privatization with zeal and rigor. Relegated to the margins, however, have been inquiries into privatization’s close cousin: direct government market participation. Given the ubiquity of government commercial transactions, the political, legal, and economic challenges such transactions engender, and the rise of CEO‐style elected officials—the Trumps, Bloombergs, and Romneys of the world—almost evangelical in their commitment to running government like a business, closer study is warranted.

This Article characterizes direct government market participation as a complicated, confusing, and potentially dangerous fusion of sovereign and commercial power. It describes how this fusion may undermine markets, aggrandize State power, or do both at the same time. It compares the straddling of the sovereign and commercial realms with any number of other constitutionally problematic bridging efforts, including those to combine executive and legislative; executive and judicial; federal and state; civilian and military; church and State; and, of course, private and public powers. Lastly, it situates government market participation within its own separation‐of‐powers paradigm—and does so to help rationalize and domesticate the vexing but often necessary practice.

The Proficiency of Experts

Brandon L. Garrett & Gregory Mitchell

Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court’s Daubert ruling, strengthened judicial review of the reliability and the validity of an expert’s methods. Judges and scholars, however, have neglected the threshold question for expert evidence: whether a person should be qualified as an expert in the first place. Judges traditionally focus on credentials or experience when qualifying experts without regard to whether those criteria are good proxies for true expertise. We argue that credentials and experience are often poor proxies for proficiency. Qualification of an expert presumes that the witness can perform in a particular domain with a proficiency that non‐experts cannot achieve, yet many experts cannot provide empirical evidence that they do in fact perform at high levels of proficiency. To demonstrate the importance of proficiency data, we collect and analyze two decades of proficiency testing of latent fingerprint examiners. In this important domain, we found surprisingly high rates of false positive identifications for the period 1995 to 2016. These data would qualify the claims of many fingerprint examiners regarding their near infallibility, but unfortunately, judges do not seek out such information. We survey the federal and state case law and show how judges typically accept expert credentials as a proxy for proficiency in lieu of direct proof of proficiency. Indeed, judges often reject parties’ attempts to obtain and introduce at trial empirical data on an expert’s actual proficiency. We argue that any expert who purports to give falsifiable opinions can be subjected to proficiency testing and that proficiency testing is the only objective means of assessing the accuracy and reliability of experts who rely on subjective judgments to formulate their opinions (so‐called “black‐box experts”). Judges should use proficiency data to make expert qualification decisions when the data is available, should demand proof of proficiency before qualifying black‐box experts, and should admit at trial proficiency data for any qualified expert. We seek to revitalize the standard for qualifying experts: expertise should equal proficiency.

Comments

A Municipal Speech Claim Against Body Camera Video Restrictions

Matthew A. De Stasio

This Comment describes one approach to securing public access to the data collected by police‐worn body cameras (PWBC). Ever since the rapid expansion of body camera programs following highly publicized police shootings (particularly the shooting of Michael Brown in Ferguson, Missouri, in the summer of 2014), state legislatures across the country have rushed to decide who should have access to the collected video and how to limit its public release. Over half of the major police departments across the country are using body cameras supplied by a single manufacturer alone, and the storage and release of the video is an urgent issue. The patchwork of laws governing the disclosure of PWBC data has left the public without simple or consistent means of accessing that information.

Every state except New Hampshire exempts police records from public records requests. Many laws which explicitly address the release of PWBC data either grant disclosure discretion to a custodian or a judge, or they prohibit release entirely, absent special circumstances. The myriad restrictions on public access has stymied the avowed purpose of implementing body camera programs: to increase the transparency and public accountability of police practices.

The goal of fostering transparency to improve community relations would be more easily achieved if local governments and police departments, in the exercise of their discretion over local affairs, could publicly release video of contested police encounters without prior restraint. Some police departments seek to do just that, either in situations of suspected unwarranted police violence or matters of national importance. For example, in October of 2017 the Las Vegas Police Department publicly released a compilation of PWBC footage only two days after the worst mass shooting in U.S. history took place. Localities may seek to do so when it would improve community relations, inform public debate of police practices, and educate residents so they can effectively participate in the process of self‐government. However, state statutes may prevent localities from securing these benefits for their citizens.

In this Comment, I argue that state laws which restrict disclosure of PWBC data by municipal governments run afoul of the First Amendment’s Free Speech Clause and are subject to constitutional challenge by the municipalities themselves.

Halo Is Not the Saving Grace for the Patent System

Jennifer Hartjes

Patent law is facing growing pains as it tries to operate within a framework originally created with different technology in mind. As technological advancements have proliferated in recent decades, cracks in the patent system’s foundation have become apparent. As Justice Breyer pointed out, “[t]oday’s patent world is not a steam‐engine world. We have decided to patent tens of thousands of software products and similar things where hardly anyone knows what the patent’s really about.” There is a mounting concern among scholars and members of Congress that the patent system is infested with invalid patents. While a precise number of invalid patents currently in force is not measurable, studies suggest that the over‐granting of patents is a real threat. Invalid patents increase transaction costs for subsequent innovators: innovators must navigate unnecessary red tape and non‐practicing entities (commonly referred to as “patent trolls”) can abuse the patent system by threatening to assert these invalid patents against others.

The patent system can combat the problem of invalid patents at three stages. First, more resources can be dedicated to the United States Patent and Trademark Office (PTO). The initial review of patent applications can be expanded to allow for a more thorough vetting upon initial receipt. Possible measures of reform could include hiring more examiners, increasing the time spent on each patent application, or requiring greater disclosure of prior art by the potential patentee. But reform at this stage would provide an incomplete solution because it would fail to dispose of bad patents that are already in circulation.

A second point at which invalid patents can be confronted is the post‐issuance, pre‐litigation stage. This approach was followed in the 2011 America Invents Act (AIA). With a concern for invalid patents at the forefront of policy discussions, the AIA bolstered administrative proceedings at this intermediate stage, introducing inter partes review and post‐grant review. Congress sought to create an “administrative route more efficient and less expensive than district court litigation.” Still, invalid patents have continued to plague the patent system in the years following the implementation of the AIA. Setting aside the questionable effectiveness of these administrative routes, there is a more immediate question of whether these proceedings by the PTO are even constitutional. The Supreme Court will address this issue in its coming term.

The final stage at which invalid patents can be eliminated is litigation. When optimally structured, litigation is a promising method of correcting errors carried over from the patent issuance stage. An adversarial system provides an opportunity for a judge to have a (potentially) fair view of both parties’ positions. The finality of the decision provides clarity for patent owners and the public. But the current litigation system suffers from procedural defects, making it costly, time consuming, and ill‐equipped to handle an abundance of patents. Patent litigation costs in the United States are extremely high, especially as compared to foreign patent systems. In addition to the high costs, parties are tied up for an average of two and a half years before their cases reach trial. With these substantial burdens, patent litigation is not a realistic option for small companies, nor is the system well‐equipped to sort through a large volume of patent disputes. Thus, patent litigation is a good candidate for reform. A more streamlined system will allow increased access to litigation, thereby increasing the number of patents that courts can either dispose of or validate.