Vol. 103 Issue 1

Since her appointment in 2010, Justice Elena Kagan has remarked on multiple occasions that although the overall quality of advocacy before the U.S. Supreme Court today is high, the same cannot be said of the advocacy for criminal defendants. While some scholars and practitioners have made similar observations, there has been little meaningful study devoted to the question of whether criminal defendants—as a category of litigant—are being adequately represented by counsel at the Supreme Court. In particular, no commentator has meaningfully explored whether inexperienced criminal defense attorneys make sufficient use of assistance offered by expert Supreme Court litigators.

This Note aims to fill part of that void. I argue that the criminal defense advocacy gap observed by Justice Kagan does exist; that the advocacy gap places criminal defendants at a distinct disadvantage before the Court; and that to close this advocacy gap, more criminal defense attorneys should accept assistance from Supreme Court specialists once a case reaches the merits stage of Supreme Court litigation.

Part I presents a statistical analysis of Justice Kagan’s assertion that criminal defendants are more likely than other litigants to be represented at the Supreme Court by inexperienced advocates. I test that assertion by comparing the Su- preme Court experience of criminal defense attorneys appearing at oral argu- ment with that of opposing government counsel and other Supreme Court advocates during the last five Supreme Court Terms. The results show that Justice Kagan is correct: criminal defendants are significantly more likely than other litigants to be represented by counsel making their first Supreme Court argument. This disparity increases when the experience of defense attorneys is compared with that of their opposing government counsel.

Part II of this Note asks whether the criminal defense experience deficit is a problem. It answers that question by presenting the results of empirical studies that show an attorney with previous Supreme Court experience is more likely to achieve a positive outcome for his client at the merits stage than counsel without Supreme Court experience. These studies suggest that criminal defen- dants who are represented by inexperienced counsel are at a distinct disadvan- tage at the Supreme Court, especially in light of the extensive Supreme Court expertise often wielded by their government adversaries. Further, these studies suggest that the criminal defense experience deficit is a cause for concern for the entire country because the decisions made by the Court in criminal cases shape civil liberties for all who live, work, and travel in the United States.

Part III examines the implications that these data have for criminal defense attorneys who reach the merits stage of Supreme Court litigation. Although there may be some promise in making systemic reforms to improve criminal defense advocacy at the Supreme Court, I argue that the simplest and most effective way to address the criminal defense advocacy gap is for criminal defense attorneys who lack Supreme Court experience to be more willing to accept briefing and argument help from Supreme Court experts.

Administrative agencies frequently say “not now.” They defer decisions about rulemaking or adjudication, or decide not to decide, potentially jeopardiz- ing public health, national security, or other important goals. Such decisions are often made as a result of general Administration policy, may be highly controversial, and are at least potentially subject to legal challenge. When is it lawful for agencies to defer decisions? A substantial degree of agency autonomy is guaranteed by a recognition of resource constraints, which require agencies to set priorities, often with reference to their independent assessments of the relative importance of national policies. Agencies frequently defer decisions because they do not believe that certain policies warrant prompt attention. Unless a fair reading of congressional instructions suggests otherwise, agencies may defer decisions because of their own judgments about appropriate timing. At the same time, agencies may not defer decisions—or decide not to decide—if (1) Congress has imposed a statutory deadline, (2) their failure to act amounts to a circumvention of express or implied statutory requirements, or (3) that failure counts as an abdication of the agency’s basic responsibility to promote and enforce policies established by Congress. Difficult questions are raised by moratoria, formal or informal, on regulatory activity, especially if they are motivated by political considerations. Difficult questions also arise when agencies cannot feasibly meet statutory deadlines while fulfilling their obligation to engage in reasoned decisionmaking.

This Article explores how courts have created antitrust immunity for patent theft and why this rule is mistaken. Part I introduces basic antitrust concepts, including the antitrust cause of action for illegal monopolization. It shows how courts have applied these antitrust principles to patent fraud, for example, when a firm acquires monopoly power by enforcing a patent that it procured by committing fraud on the Patent Office.

Part II of this Article explores the argument—advanced by influential jurists— that a firm that monopolizes a market through patent theft does not violate the antitrust laws. In Brunswick Corp. v. Riegel Textile Corp., Judge Richard Posner reasoned that so long as a particular patent should issue to someone, who gets the patent and how that individual acquires it are of no antitrust consequence. The Brunswick rule is based on the assumption that patent theft does not create monopoly power; it merely transfers it from one firm to another. Judge Posner further argued that patent theft cannot affect the price paid by consumers because whoever controls the patent will charge the same profit-maximizing price. Thus, patent theft does not affect consumer welfare and is not a concern of antitrust law. Posner’s opinion has become the conventional wisdom. After Brunswick, monopolization through patent theft does not violate Section 2’s prohibition against illegal monopolization.

Part III explains why the rationales for immunizing patent theft from antitrust liability are unsound. Under some conditions, patent theft can create market power, not merely transfer it. For example, in a scenario involving substitute patents, if two patentable technologies could compete against each other and the owner of one of these technologies steals the other and patents both of them, the patent thief could acquire monopoly power that would not exist if the two patentable technologies were owned by competing firms. Independent of sub- stitute patents, which firm acquires a particular patent has competitive impli- cations because not all patent owners would exercise the exclusionary rights in the same way. Some patent owners may pledge their patents to the public domain. Others may enforce their patents less aggressively or more selectively. Additionally, not all patentholders price their patented inventions similarly. Part III describes how various regulatory, institutional, contractual, and market constraints can limit some patentees’—but not others’—ability to charge a monopoly price.

Patent theft also implicates innovation and efficiency concerns. Price competi- tion is only one facet of how competition affects consumer welfare. Dynamic competition is what spurs innovation, ensuring that consumers benefit from products being improved and entire new categories of consumer products being developed. Dynamic competition depends on proper incentives being in place.

Patent theft reduces the expected benefits of R&D. If one’s ideas can be misappropriated by a rival firm who can use a stolen patent to exclude the innovator from the market, the incentive to innovate is significantly reduced. Furthermore, as an innovator in the past, the true inventor may be more likely to take the monopoly profits associated with a valuable patent and reinvest them to develop future innovations. Finally, patent theft can impose inefficiency on the economy by encouraging patent suppression and discouraging the efficient licensing of technology. For all of these reasons, patent theft can reduce consumer welfare in a manner that antitrust law cares about.

Part IV explains why monopolization through patent theft violates Section 2 of the Sherman Act. Assuming that the patent thief has monopoly power, stealing a rival’s patent constitutes monopoly conduct. Patent theft is not competition on the merits, nor does it fall within any recognized antitrust defense. Both the excluded rivals (including the true inventor) and consumers who pay inflated prices suffer antitrust injury and are appropriate antitrust plaintiffs. Moreover, antitrust liability is appropriate for patent thieves who illegally monopolize a market because neither patent law nor various state causes of action provide a sufficient remedy to disgorge the ill-gotten gains of patent theft, to deter patent theft, or to compensate the victims of patent theft for their losses. Consequently, antitrust law should condemn monopolization through patent theft regardless of the fact that the true inventor could have patented the underlying invention. Patent theft should not be immune from antitrust scrutiny.

In the past twenty years, there has been significant growth in the alternative- litigation-finance industry, whereby an outside third-party contributes capital with the expectation of a positive return upon successful completion of a lawsuit. In the early days of litigation finance, claims were primarily limited to the personal injury arena. But in recent years, outside funders have shown an interest in more complex, commercial litigation. For instance, Counsel Financial—a firm backed by Citigroup—funded much of the litigation surrounding the 9/11 World Trade Center disbursements. And because of international pressures and competition, litigation financing has become a much more global industry. The Chevron–Ecuadorian environmental liability litigation that produced an $18 billion judgment abroad was financed at least partially by outside funders. Plaintiffs are not the only group to take advantage of litigation finance either. Most recently, sovereign nations and corporate defendants have taken advantage of this type of funding, adding a new dimension to the analysis.

What makes alternative-litigation-financing arrangements attractive to all of these greatly varied parties? Much of the literature written about the litigation finance industry has focused on the propriety of the arrangements in light of the judicial, regulatory, and ethical barriers that currently exist, with an eye towards policy changes that would make funding more accessible to potential claim- holders and clients. But why do each of the three parties to the transaction (the funder, the attorney, and the claimholder) agree to these arrangements in the first place? In particular, why do these parties, especially the claimholder, choose an alternative-litigation-financing agreement as opposed to a more traditional contingent-fee arrangement? Why do funders sometimes loan directly to attorneys and other times to claimholders themselves? This Note will analyze the factors in the decision to seek alternative litigation financing. These include both the artificial barriers that have been erected by the current legal and regulatory regime, such as the prohibitions on champerty and maintenance, and the economic considerations of the parties, including cost of capital, liquidity and risk preferences amongst others.

The Note will proceed as follows. Part I provides a brief overview and compares the traditional contingent-fee arrangements entered into between an attorney and client with alternative litigation financing provided by a third-party funder. This includes both loans made by a funder directly to a client and loans made from a funder to an attorney. Part II will discuss the economically artificial barriers to entering into these agreements, including prohibitions on champerty and maintenance, ethics rules, usury, and other regulations. Part III will introduce a model explaining the various components of the funder and attorney’s decisionmaking process. The variables modeled will determine what interest rates the funder and attorney will have to charge in order to make the agreement economically feasible. Parts IV through VI will analyze the funder’s, attorney’s, and client’s decisionmaking processes, respectively, detailing what benefits and comparative advantages the parties can realize from the arrangement. The Note will conclude with a discussion of potential implications of the model and closing remarks.

Identifying legal change is an ordinary part of legal decisionmaking, but participants in those decisions regularly focus on different measures. A version of the problem arises when one observer points to results while another observer points to processes for generating such results. Often change can be detected on one of those dimensions and not another. This Article offers a way to think about legal change that captures process–result combinations. The Article illustrates the combination with numerous examples from ordinary life, ordinary law, and constitutional law—including particular controversies such as same-sex marriage benefits, as well as crosscutting debates over methods of interpretation.

The Article then offers explanations and implications. It examines why people might want to link results with antecedent legal processes, estimates the serious- ness of the problem this creates for measuring legal change, and evaluates fixes involving the exclusion or the aggregation of dimensions of interest. Excluding either processes or results from consideration tends to sacrifice valuable informa- tion for both empirical and normative analysis. Aggregating dimensions using a common metric probably is a more promising response, but plausible common metrics tend to drift away from a workable concept of legal change. The Article closes by raising the possibility of normative legal analysis without independent value for either legal change or status quo. Throughout, the Article draws lessons from psychology, philosophy, politics, and empirical studies.

Over the last ten years, judges, scholars, and policy makers have argued— quite vehemently at times—about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its alleged use and misuse of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostasy.

Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical work on the conditions under which Supreme Court Justices actually use transnational law. Is it in fact the case that only liberal Justices employ transnational law—or do conservatives as well? In addition, there is little work on which countries Justices cite when they do use transnational law. Do they cherry pick whichever country works best in a given case, or is there a constraint via legitimacy on which countries to examine and cite?

The authors provide one of the most systematic empirical explorations of the Court’s use of transnational law to date. Their results challenge conventional wisdom and upend the existing debates over transnational law. The data show that Justices are more likely to reference transnational law when they exercise judicial review and when they overturn precedent, which likely explains much of the controversy around the practice. Importantly, the data show, further, that all Justices cite transnational law. Liberals cite transnational law when they render liberal decisions, and conservatives cite transnational law when they render  conservative decisions. Liberals and conservatives alike employ such law be- cause both are ideologically conscious and strategic judicial actors who seek to support their decisions with as much persuasive material as possible.

Finally, the results suggest that Justices cite countries with regard to their political and legal characteristics. They cite what the public would consider to be among the most legitimate countries across the globe. In other words, on the whole, Justices seem to borrow from countries most like the United States. Whether these results are good or bad is unclear; what is clear, however, is that the normative debate over using transnational law must take a turn and address the authors’ findings. Scholars can then pay more attention to best practices and the policy implications of cases that cite transnational law.