The Georgetown Law Journal Online

There is ample evidence that the vast majority of civil legal needs in the United States are addressed without attorneys, in part because of lack of access to affordable legal services. This reality has created a demand for programs that provide access to solutions to legal issues, which in turn has resulted in calls for more “innovation” in the way legal services are provided. As a result, companies like LegalZoom and Rocket Lawyer began to provide access to legal forms and do-it-yourself options. However, as could be expected, the challenge to the current boundaries of the marketplace did not stop there. Soon, LegalZoom, Rocket Lawyer, Avvo, and even the American Bar Association (ABA) began to offer access to legal services through networks of lawyers who agree to be available to clients.

The Skidmore-Chevron deference precedent depicts a Supreme Court struggling to divine congressional intent regarding the scope of delegated agency authority. In these cases, the Court often finds that the statutory language is not sufficiently instructive, and turns to statutory purpose, legislative history, and the formality of agency action as aids. This complex, excursive process provokes two related questions: Would clearer congressional delegation simplify courts’ efforts and result in more accurate determinations? In particular, would administrative law benefit from congressional use of the Court’s Skidmore-Chevron deference terminology to alert courts off the bat to which standard they should employ?

The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection. The 5–4 majority opinion reads the Constitution to require an available form of execution. But it does little to counter Professor Denno’s claim in “Lethal Injection Chaos Post-Baze” that pragmatic supply-side concerns should dismantle the economy for lethal injection. Off-brand substitutes for lethal injection drugs have led to recent high-profile botches. Both Utah and Wyoming have proposed a return to the firing squad. Lethal injection is comparatively sanitary and bureaucratic. But I respond that the firing squad is more coherent with death penalty administration heuristic concerns of retribution and dignity. The visibility of the firing squad also serves an abolitionist, information-forcing function by requiring a candid look at death penalty process from the perspective of the executed.

The DOJ calls encryption a “zone of lawlessness.” Others call it an “[e]scape from [t]yranny.” Opinions on encryption clearly diverge. But this micro-hornbook isn’t about opinions. It’s about the law—on what happens when the government has the right to search digital data (perhaps through a search warrant), but can’t because the data is password protected and encrypted. Can the government, without violating the Fifth Amendment, force a phone’s owner to (a) produce the phone’s password or (b) produce the decrypted phone (i.e., force her first to enter the password and then to produce the phone)? The first question’s answer is easy; the second’s answer is hard; and this micro-hornbook sketches the answers for both.

The Institute of Electrical and Electronics Engineers (IEEE) is a standard-setting organization (SSO) whose standards incorporate technologies owned by many different holders of standard-essential patents (SEPs). The IEEE’s patent policy specifies the conditions under which an SEP holder voluntarily commits to license its SEPs on fair, reasonable, and nondiscriminatory (FRAND) terms. In February 2015, the IEEE became the first SSO to regulate the calculation of FRAND royalties. The IEEE made that transformative change with the encouragement and blessing of the Antitrust Division of the U.S. Department of Justice. The amendments purport to mitigate the risk of patent holdup and royalty stacking—theoretically and empirically disputed conjectures, which postulate that SEP holders routinely extract supracompetitive royalties from the implementers of a standard. In fact, the amendments broaden the binding provisions of the IEEE’s FRAND commitment, diminish the SEP holder’s ability to enforce its patent rights, and unambiguously lower the royalties that the SEP holder may charge a licensee. In its business review letter, the Antitrust Division commended the bylaw amendments for addressing the risk of patent holdup and royalty stacking without any analysis of whether those harms actually occur in the implementation of the IEEE’s standards (let alone occur so often as to raise a legitimate policy concern). At the same time, the Antitrust Division ignored the obvious, countervailing concern that the bylaw amendments facilitate collusion among implementers to suppress the royalties they pay for SEPs. The Antitrust Division exists not to orchestrate or cheerlead the coordinated action of buyers in a market to suppress prices. It exists to ensure that firms obey the antitrust laws. That duty required the Division to assess, with skepticism and scrupulous impartiality, the competitive implications of the coordinated action of a subset of members of the IEEE that would benefit from the SSO’s adoption of bylaw amendments having the purpose and effect of suppressing the FRAND royalties that this subset of members would pay to license standard-essential patents. The Division failed to discharge that duty.

The United States Constitution provides that rules for the election of congressional representatives for each state shall be set by the “Legislature thereof.” Last Term, in Arizona State Legislature v. Arizona Independent Redistricting Commission, a Supreme Court majority joined by Justice Anthony Kennedy permitted Arizona to bypass its formal legislature and adopt congressional district lines drawn by an independent commission pursuant to an authorization from the people of the state. Commentary on Justice Kennedy’s vote suggested that practical policy considerations moved him to approve this reassignment of legislative power. But placing Arizona State Legislature in its proper context suggests that a deep principle was at work: while the federal Constitution carefully assigns federal legislative, judicial, and executive powers to specific institutions, it leaves the states free to allocate such powers differently. Justice Kennedy’s opinion for the Court in ASARCO, Inc. v. Kadish allowed a state to have its judicial branch make decisions more typical of an executive agency, and to have private proponents defend those decisions to the Supreme Court. The outlier in this trilogy was Hollingsworth v. Perry. There, over Justice Kennedy’s vigorous dissent, the Court prevented a state from granting executive power to private proponents, and declined to hear their substantive arguments. Analyzing the cases together reveals striking parallels and provides a new perspective on Hollingsworth’s anomalous holding.

In “Military Courts and Article III,” our colleague and fellow law professor Steve Vladeck has made an original and important contribution to the literature on the interaction of military tribunals with Article III of the U.S. Constitution. Professor Vladeck argues that what he calls the “military exception” to Article III’s requirements of a jury trial and lifetime-tenured judge has “increasingly become untethered from any textual or analytical moorings.” In particular, Professor Vladeck questions the power of military commissions to try suspected terrorists on charges that do not constitute international war crimes and the power of courts-martial to try civilian contractors and hear charges based on alleged “non-service-connected” conduct by members of the armed forces of the United States.

Professor Vladeck views these perceived flaws as a problem that must be remedied by his counter-historical proposal: that international law should govern Congress’s power to establish both military commissions to try suspected terrorists and courts-martial to try members of the U.S. armed forces. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a problem. Moreover, Professor Vladeck’s analysis fails to acknowledge the importance of deference to Congress’s exercise of its war powers, and the resonance of U.S. and English history familiar to the Framers. We write to clarify the categories of military jurisdiction, their basis, and their rationale. . . .

The Dodd-Frank Act, enacted after the global financial crisis, requires U.S. financial regulators to define and regulate systemically risky firms and activities—a truly Sisyphean task. In this Essay, we identify two paths regulators have taken: a “descriptive approach,” which involves restating the Congressional mandate as regulatory text and creating a qualitative, bespoke process for the identification of systemic risks; and a “prescriptive approach,” which involves adopting detailed, specific, and data-driven rules that clearly delineate firms or activities that do, or do not, pose systemic risk. Each of these approaches has benefits and drawbacks—most notably the tradeoff between ex ante certainty of application (prescriptive approach) and flexibility (descriptive approach). We then describe a third approach—implemented in the Volcker Rule—of layering a broad descriptive prohibition onto a set of detailed, prescriptive rules. This middle, “backstop” approach is a tempting way for regulators to capture the benefits of both the descriptive and prescriptive approaches. However, we argue, in practice the backstop approach accentuates the drawbacks of each of the descriptive and prescriptive approaches, rather than their benefits, resulting in ex ante uncertainty while tying the hands of regulators. We therefore suggest that regulators avoid the temptation of the backstop approach when seeking to identify systemically risky firms or activities, but we also provide suggestions for minimizing these adverse outcomes should regulators nonetheless choose this approach.

First-time visitors might be surprised to learn that the Guantanamo Bay Naval Base offers a full complement of recreational activities. One can rent a kayak, visit a bowling alley, or stop by the arts and crafts pavilion operated by contractors for the Department of Defense.

And so it came to be that I found myself standing in the warm surf of a well-groomed Cuban–American beach, belongings perched on a lounge chair nearby. Behind me stood a series of shaded cabanas, a just-renovated restroom facility, and a posted sign admonishing visitors to please refrain from feeding the iguanas. To my right were beautiful rock formations protecting the cove from the strongest gusts of wind, and to my left loomed a picturesque rocky cliff with a sheer one-hundred-foot drop into the ocean. On top of that cliff, stark and unmistakable, stood one of the island’s famous military detention facilities. Encased in concentric rings of razor wire, it was flanked on all sides by spotlights and guard towers. The view from the top, for the undisclosed number of Saudis, Yemenis, and Pakistanis housed there for more than a decade, is no doubt breathtaking. . . .

Economic inequality recently has entered the political discourse in a highly visible way. Inequality and “middle-class economics” were the centerpieces of President Obama’s 2015 State of the Union address. Leading potential Republican presidential nominees have also spoken out on the problem of inequality in the United States.

This political impact is not a surprise. As the U.S. economy has begun to recover from the Great Recession since mid-2009, the rising tide has not lifted all boats. To the contrary, median income and wealth both declined in real terms between 2010 and 2013. Over essentially the same period, the real income of the top 1% grew by 31.4%, and the income share of the top 1% increased from 17.2% to 19.8%. The fact that economic growth has effectively been appropriated by those already well off, leaving the median household less well off, raises serious economic, political, and moral issues.

The divergence in economic fortunes between those at the very top and the rest of society is not a temporary phenomenon. Median income has been declining since 2000, well before the start of the Great Recession, while real GDP is more than 25% higher now. The economic position of the richest Americans has improved during the past decade, while most households have struggled or lost ground. In fact, inequality in the United States has been growing since the 1980s. Between 1982 and 2013, the share of income going to the top 1% increased from 12.8% to 19.8%, and the share going to the bottom 40% fell from 12.3% to 9.4%. The average income of the top 1% rose by 90% between 1983 and 2013, while the average income of the bottom 60% declined by more than 4% over the same period. . . .

Obergefell v. Hodges is a historic decision that accomplishes the important task of requiring marriage equality across the nation. To many, the opinion’s romantic language gives particular poignancy to the historic moment when the long-recognized fundamental right to marry was finally extended to same-sex couples. However, what people see as the romance of the opinion masks a profoundly conservative decision, one that abandons meaningful equality analysis, and instead engages in a full-throated embrace of the conservative institution of marriage as an essential and necessary cornerstone of American society. In so doing, the decision advances a new and troubling doctrine of marital superiority that explicitly undercuts the dignity and worth of non-marital relationships. Much to the dismay of those who may have wished to allow states to experiment with other, more progressive relationship-recognition forms, Obergefell’s marital superiority rhetoric may guarantee that marriage will, for the foreseeable future, remain the only recognized relationship in town. . . .

A Comment on Bruce R. Huber, The Durability of Private Claims to Public Property, 102 GEO. L.J. 991 (2014)

Bruce Huber’s thoughtful article, “The Durability of Private Claims to Public Property,” is an excellent demonstration of the ways that older uses of the federal public lands continue long past the times they should be expected to expire. But the federal public lands are not necessarily a stand-in for public property in general; most other kinds of public property have far fewer and less intense problems with durable private claims, or indeed with private claims at all. The federal public lands, on the other hand, have a set of particular characteristics that lend themselves to a pattern in which private users first assert and then overstay their entitlements. The problem of durable claims on the public lands is in some ways an instance of the problem of regulatory change, made more acute by the special characteristics of the federal public lands. This commentary flags one of these characteristics in particular: the echoes of a very old concern about the potential linkage between a federal “endowment” of large public lands and autocratic government—a concern that, to some degree, still animates opponents to federal assertions of control over the public lands.

Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits. . . .