A Patent Reformist Supreme Court and Its Unearthed Precedent

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules that favor accused infringers over patent holders, and the result has been an era of patent litigation reform far more impactful than anything Congress has achieved. Scholars have observed that the Supreme Court tends to overrule Federal Circuit decisions that (1) impose rigid legal rules as opposed to flexible standards; (2) adopt special rules for patent law cases rather than applying general principles of law and equity applicable to all federal cases; and/or (3) fail to grant sufficient discretion to the district courts. This paper examines the twenty-eight Supreme Court opinions overruling the Federal Circuit since 2000 and quantifies their rationales to discover that, while these reasons are often invoked, the Supreme Court’s most common rationale is that the Federal Circuit has disregarded or cabined its older precedent from before the 1982 creation of the Federal Circuit, from before the 1952 Patent Act, and even from before the 20th Century. The Court has relied on this rationale in twenty-one of the twenty-eight cases. The paper then seeks to probe beneath the surface level patterns to discover the deeper roots of the discord between the Supreme Court and the Federal Circuit. Constitutional law scholars have observed that the Supreme Court’s policy preferences are the primary, unstated motivation behind its decisions. The Court writes opinions that rely on the flexible tools of precedent and stare decisis in order to implement its policy choices while maintaining its institutional reputation for neutrality. The Court does this by influencing precedent vitality; the Court selects which of its precedent to rely upon and augment and which of its precedent to distinguish and narrow. This process runs in direct conflict with the Federal Circuit, a court that was originally conceived and viewed by some of its members as a court intended to bring uniformity to patent law in a way that would reinvigorate patent rights. The Federal Circuit would implement the 1952 Patent Act in a way that would draw patent law out of the nineteenth century. But for the Supreme Court, the 1952 Act was a mere codification of patent law as developed by the courts for over a hundred years. Hence, the Federal Circuit seeks to influence precedent vitality at direct cross-purposes with the Supreme Court. The result of the Supreme Court’s project has been a new era of common law patent reform in favor of accused infringers, which is gaining momentum as the Supreme Court decides far more patent cases than it has since the passage of the Patent Act of 1952

Arbitration Case Law Update 2013

The U.S. Supreme Court and lower state and federal courts continue to decide cases under the Federal Arbitration Act (FAA) at an astounding rate. This chapter summarizes Supreme Court opinions over the past year that interpret the FAA, as well as selected lower court decisions that apply the FAA and could have an impact on securities arbitration practice

The Asymmetry Problem: Reflections on Calvin Massey’s Standing in State Courts, State Law, and Federal Review

This paper is based on remarks delivered at a symposium to honor my University of New Hampshire School of Law colleague Calvin Massey, who passed away in the fall of 2015. The paper discusses an asymmetry in federal standing law. The asymmetry lies in the fact that, when a state’s highest court decides the merits of a federal claim brought in circumstances where the claimant has standing under state law but not federal law, the United States Supreme Court has jurisdiction to review the decision only if the state supreme court upholds the federal claim. This asymmetry was the subject of a 2015 essay that was Calvin’s last piece of published scholarship. In the essay, Calvin used a hypothetical state-aid-to-religion fact pattern to illuminate the asymmetry, to emphasize its problematic nature, and to propose a solution. This paper agrees with Calvin that the asymmetry is problematic and advances three preliminary hypotheses, to be developed in future work, about how various federal and state institutional actors could ameliorate the problem. The first hypothesis is that Congress should consider legislating to ensure that a party facing a federal claim in state court in circumstances where a federal justiciability doctrine would bar the claim in federal court can remove the claim and obtain its dismissal. The second hypothesis is that the United States Supreme Court should consider using its power to create constitutional common law to fashion remedy-limiting doctrines drawn from federal justiciability principles and to impose these doctrines on state courts as affirmative defenses to federal claims. The third hypothesis is that, even in the absence of a federal mandate, state courts should apply conflict-of-laws theory to withhold relief for claims based on federal law in circumstances where federal courts would lack the power to afford the claimant a remedy

“A Considerable Surgical Operation”: Article III, Equity, and Judge-Made Law in the Federal Courts

This Article examines the history of judge-made law in the federal courts through the lens of the early-nineteenth-century federal courts’ equity powers. In a series of equity cases, and in the Federal Equity Rules promulgated by the Court in 1822 and 1842, the Supreme Court vehemently insisted that lower federal courts employ a uniform corpus of nonstate equity principles with respect to procedure, remedies, and - in certain instances - primary rights and liabilities. Careful attention to the historical sources suggests that the uniform equity doctrine was not simply the product of an overreaching, consolidationist Supreme Court, but is best understood in the context of important and surprisingly underappreciated early-nineteenth-century debates concerning judicial reform. During this period, both Congress and the Court were preoccupied with the disuniformity in the administration of the federal judicial system, especially in the farther reaches of the republic. When reform was not forthcoming through legislation, the Supreme Court achieved a modicum of uniformity in the federal courts through the application of a single body of equity principles drawn from federal and English sources. But the Court did not act unilaterally. Congress’s repeated acquiescence to, and extension of, the Court’s uniform equity doctrine reveals a complex, interbranch dynamic at work. Retelling the story of nonstate, judge-made law in the federal courts through the lens of equity is not intended to demonstrate that such a formulation of federal judicial power was (or is) correct. Rather, by recuperating the history of federal equity power, this Article illuminates the significant metamorphosis of the meaning of Article III’s grant of judicial power. This change has been elided in modern accounts of federal judge-made law in an effort to bolster the legitimacy of a modern vision of federal judicial power

Asking the Right Federal Questions: Merrill Lynch v. Manning and the Exclusive Jurisdiction Provisions of the Securities Exchange Act

Suppose you run a small corporation in the business of auctioneering stamps, coins, and other collectibles. Sensing that your corporation’s financial prospects are on the decline, large financial institutions drive the price of the company’s stock down. Your shareholders sue in state court alleging a breach of state law in manipulating stock prices while also referencing breaches of federal securities law. Can the defendant financial institutions remove the case to federal court? This question is set to be answered by the Supreme Court in Manning v. Merrill Lynch, which deals specifically with whether section 27 of the Securities Exchange Act of 1934 allows defendants to remove a case to federal court when the plaintiff brings state-law claims in state court, but references violations of a related federal regulation. In Manning, the Supreme Court has an opportunity to resolve several circuit splits at once by deciding how the removal provisions of section 27 should be construed relative to the general federal question jurisdiction statute. This Commentary urges the Court to hold that the requirement of section 1331 is a necessary prerequisite to the triggering of any exclusive jurisdiction provision. This holding would prevent wholly state-law claims brought in state court from being removed to federal court, thereby preserving the federal-state balance that Congress intended to create through the Exchange Act

Habeas as Forum Allocation: A New Synthesis

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody

Foreword: The Supreme Court\u27s Estate Planning Jurisprudence

Sophisticated trust and estate counsel must keep up with near-daily developments in the substantive state law of wills, trusts and estates, as well as state and federal laws of wealth transfer taxation. Because of the sheer volume of statutory law and administrative regulations that estate planners must master, it is easy to lose sight of the important role that federal courts play in shaping the field of estate planning. Federal tax cases are routinely heard by the United States Tax Court, the Federal District Courts, the Court of Federal Claims and appellate courts in all circuits. Yet very few tax cases make it all the way to the Supreme Court of the United States. For this reason, the role of the nation\u27s highest court in the development of estate planning jurisprudence may be under-theorized. This issue of the ACTEC Law Journal considers the role of the United States Supreme Court in interpreting income, estate and gift tax laws and how those interpretations have shaped the development of contemporary estate planning practice

Minimalist Solution to Williamson County

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson County relegated Fifth Amendment takings claims to a second-class of federal rights. Before a takings plaintiff can sue in federal court, she must first seek compensation through an “adequate state procedure.” Many federal courts have held that requirement to mean a takings litigant must first seek compensation through state courts if that state provides an inverse condemnation proceeding. However, if a takings litigant sues in state court, she will be unable to sue in federal court because of issue preclusion. This effectively shuts the federal courthouse door to many property owners. Only two Supreme Court justices have shown any interest in revisiting Williamson County . Thus, land use attorneys who are concerned about federal court access for takings plaintiffs should craft a case that would attract the Supreme Court’s attention. This Article argues that land use lawyers should present the Court with a case in which the property owner has used a non-judicial procedure to seek compensation (such as asking for compensation from a county board). The Court could then rule that such a non-judicial procedure is an “adequate state procedure” that satisfies Williamson County’ s requirements. This ruling would minimize the negative effects that Williamson County has wrought on takings plaintiffs

Criminal Procedure—Supreme Court Narrows Scope of Summary Procedures in Federal Criminal Contempt Convictions

Under its power to supervise the administration of justice in the federal courts, the Supreme Court has severely circumscribed the use of summary proceedings to punish for contempt of court

The Doctrine In The Shadows: Reverse-Erie, Its Cases, Its Theories, And Its Future With Plausibility Pleading In Alaska

In 2007 and 2009, respectively, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, abrogated Conley v. Gibson’s notice pleading standard, and imposed a new plausibility pleading standard upon the federal court system. Alaska, along with a majority of states however, still retains Conley’s “no set of facts” notice pleading standard. This Note asks, in light of the difference between the federal and Alaska pleading standards, whether Alaska—or any state—could be forced to apply the federal pleading standard when it adjudicates federal substantive claims. Prior to Iqbal, a plaintiff in Alaska would have faced the same pleading obligations in state and federal court regardless of whether he pleaded a state or federal claim. As this Note describes, now, a plaintiff could face different pleading standards depending on not only where he brings his claim, but also, if he’s in state court, whether he brings a state or federal claim. The reason for this is the Reverse-Erie doctrine: an little-developed judicial choice of law theory that broadly asks which procedure, federal or state, applies in a state court proceeding. Using the differences between federal and state pleading standards as an opportunity to flesh out Reverse-Erie, this Note concludes that while it is unlikely that the Supreme Court would force a state to adopt the federal pleading standard, the jurisprudential framework for such a move exists