How Small will Flast Get?

The Court is taking yet another citizen standing case, deciding whether taxpayers have standing to challenge the constitutionality of President Bush's faith-based initiative. (AP report here). This may be the closest case in terms of its facts to the wacky Flast v. Cohen case where the Court held that taxpayers have standing to challenge federal property grants to religious organizations. As the Court has made clear by repeatedly refusing to expand Flast beyond its facts, this is the only situation where people can sue the government just because they don't like what the government is doing.

Last term the Court decided DaimlerChrysler v. Cuno, and unanimously held that the plaintiffs lacked standing to challenge state tax subsidies to an automanufacturer. Standing had been asserted based on taxpayer status only. The Court didn't overturn Flast in that case, but it's difficult to see how they can avoid doing so in dismissing the faith-based initiative case without completely sacrificing what's left of its credibility in the taxpayer standing arena.

Habeas Erosion: It's Not Just for Military Detainees Anymore

The Ninth Circuit recently upheld the denial of a habeas petition against a truly asinine factual background. When the petitioner was arrested and interrogation began, he said to the arresting officer: "I plead the Fifth." The officer replied "Plead the Fifth. What's that?" and continued the interrogation. The state court rejected the petitioner's claim that he was denied his Fifth Amendment right against self-incrimination when the officers failed to stop the questioning when the petitioner asserted his right.

The District Court denied the habeas petition, and the Ninth Circuit upheld the denial. The Ninth Circuit opinion was written by the larger-than-life Judge Alex Kozinski, who has a large army of cultish admirers among the legal profession. Judge McKeown dissented.

Hopefully realizing that any reasonable officer would know what "I plead the Fifth means, Kozinski justified his absurd result by citing to the deference requirements in AEDPA. Kozinski acknowledged that, but for AEDPA, he "might be writing a very different opinion."

Assuming we can take Lord Kozinski at his word, this is a disturbing example of how habeas protection is being eroded out of existence by federal statute. But as the dissent says, it's difficult to see how any level of deference can justify upholding the state court on these facts.

Boo, Judge Kozinski.

Do We Need Specialized Trial Courts for Patent Cases?

Armchair Justice says: NO!

At the close of the latest session of Congress, the House of Representatives passed H.R. 5418, "To establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges." The bill would, among other things, allow district court judges to volunteer for designation as patent judges, whereby all patent cases in that district would be funneled to the patent judges. The bill is the latest effort to attack the high reversal rate at the Federal Circuit, which stands at an abnormally high rate of about 30-35%. Congress hopes that increased expertise at the trial level will produce better results more likely to be upheld by the Federal Circuit.

Meanwhile, the U.S. Supreme Court is attacking the Federal Circuit reversal problem from the other direction. According to a recent article from the National Law Journal:

"From 1990 to 2001, the court granted certiorari eight times, heard eight cases and affirmed the Federal Circuit's decisions 50 percent of the time. But from 2002 to now, the court granted certiorari nine times, heard seven cases -- and did not affirm in any of the cases."

So, as Congress is trying to create better results at the district court level, the Supreme Court is reversing the results at the Federal Circuit level. So what's going on at the Federal Circuit?

The Federal Circuit was created in 1982, and is unique in that it is the only federal court of appeals based entirely on jurisdiction, rather than geography. It sits in Washington, D.C., but its appeals are based on its exclusive appellate jurisdiction over a handful of federal cases, most notably patent cases. The goal in creating a single Circuit Court to hear patent appeals was to create consistency within patent law and avoid forum shopping. On the latter point, there's still a great deal of forum shopping in patent law (the Northern District of California, Western District of Wisconsin, Eastern District of Texas, District of Delaware, and District of Massachusetts are currently the most popular), so the Federal Circuit hasn't done much there.

In terms of consistency, the Federal Circuit hasn't done much better. While there are obviously no circuit splits in patent law, there are plenty of intra-circuit splits among the twelve judges on the Federal Circuit. Most experienced patent litigators will tell you that your result on appeal depends on the panel you draw. Even on clear questions of law for which there is established precedent, the judges vary greatly in the ways in which they apply (or ignore) the commands of the Supreme Court and their own precedential decisions.

Will specialized trial courts change this? I'm doubtful. There is certainly an expertise problem in many (though not all) District Courts when it comes to patent cases, but increased expertise will do nothing to address the overall willfulness of the Federal Circuit. Rather than increasing judicial specialization in patent law, I believe it's time to acknowledge that the Federal Circuit experiment has failed and return to regional jurisdiction over patent appeals.

There are plenty of benefits of having competing circuits deal with federal appeals. Giving the Federal Circuit more authority to draw from (and perhaps ignore) would assist them in reaching their own conclusions. It would also cast into sharper relief their decisions to ignore authority, and perhaps force them to either justify it doctrinally or stop doing it. In addition, I just don't think that patent law is as strange and mysterious as everyone thinks it is. Plenty of federal law is complex. The fact that patent law's complexity is derived partially from its technological subject matter doesn't mean it should have its own circuit.

Slate's Dopey Religious Freedom Diatribe

I just read this article written by two attorneys in the New York Attorney General's office about how courts treat religious freedom claims. They focus on two cases which, they claim, illustrate the judiciary's assault on God and the Constitution. In one, a New York village argued that a "Shabbos House" located near a hospital (a facility providing free lodging to observant Jews who want to visit their loved ones on the Sabbath but can't travel) was being operated in violation of local zoning laws and needed to be shut down. At the time the article was written the hearing had just taken place before in a U.S. District Court, so the court hasn't reached the merits of the arguments yet. Another case involved a Jewish day school that wanted to expand its facilities, and attempted to exploit a federal law proscribing zoning decisions that substantially burden religious practice. The Second Circuit "expressed doubt that the law's prohibitions could extend to any facilities that would be used for secular purposes" such as computer, music and art classes.

The article's authors argue that these cases illustrate the improper tendency on the part of courts to treat religious practices as secular activities. The authors argue that this tendency leads courts to improperly hold that state regulations directed toward secular activities are valid despite the fact that they infringe on religious practices. The authors interpret the prevailing jurisprudence as this: "If the conduct is susceptible to any secular justification, it is not entitled to religious liberty protection."

While attacking this approach as overly constrained the authors nonetheless appear to propose the bizzaro version of the same rule: If the conduct is susceptible to any religious justification, it is entitled to full religious liberty protection.

This is inconsistent with the long-standing (and, I would argue, doctrinally sound) principles that (1) a generally applicable regulation that creates an incidental burden on religious practice is valid so long as the regulation is not motivated by hostility toward a particular religious group and (2) a secular activity does not become a religious activity simply because a religious group chooses to engage in it. If a religious organization chooses to operate a school it must do so in compliance with state restrictions on the operation of schools. The Shabbos house is a closer call -- it isn't clear that the Shabbos house is actually a "transient motel" as argued by the village -- but since the court hasn't reached that issue yet it seems premature for the authors to be attacking it as part of a judicial trend. But if the Shabbos house is indeed a "motel" within the applicable statutory definition, and the state has decided that it doesn't want motels next to hospitals, the religious group isn't entitled to put it there. Put another way, two individuals who decide to engage in the same activity should not be treated differently under applicable regulations simply because one of them engages in the activity because they believe God says they should and the other one doesn't.

The authors blame the framers of the First Amendment for "our dysfunctional religion jurisprudence," claiming that "the twin mandates of permitting free exercise of religion while prohibiting its establishment by government are often on a collision course that puts the justices in the constitutional equivalent of swerving into oncoming traffic to avoid hitting a dog." If one takes the view that the Free Exercise clause creates an affirmative duty on the part of the government to facilitate religious practices, this analysis is correct. However, another view (and one supported by decades of Supreme Court precedent) is that the two religion clauses of the First Amendment are consistent and complimentary. The Establishment Clause prohibits the government from affirmatively sponsoring and supporting religion; the Free Exercise clause prohibits the government from affirmatively attacking or restraining religion. When the government acts in the secular sphere and its secular laws have either positive or negative effects on religious life (as is often the case, given our highly regulatory system of government), neither clause is implicated.

Finally, in bemoaning the difficulty of categorizing activities as either religious or secular, the authors suggest that all morality is religious in origin. It isn't a great leap from this questionable premise to the idea that, because all law is driven by values, all law is morally driven and therefore inherently religious. This, of course, is exactly the notion that the First Amendment was specifically designed to exclude from American government.

Patent Reform

A consortium of technology companies is lobbying Congress for patent reform. According to the article, the two main things the consortium is asking for are (1) adopting a "first to file" rule to replace the current "first to invent" rule, and (2) messing around with remedies and damages for patent infringement. This should be interesting.

The first to file rule has always been controversial. Everywhere else in the world where patent rights are recognized, if two people invent the same thing and one files a patent application first, the first filer gets the patent. Period. In the United States, the second filer can get the patent if he shows that he actually invented the technology before the first filer. Needless to say, this creates a lot of complications in patent cases and a lot of money for law firms.

The attraction of the first to invent rule is that it bestows the benefit of intellectual property ownership on the first person to actually develop the subject matter of the property. This is a nice idea in theory, but there are at least two reasons for adopting the first to file rule. First, it would bring us in line with the rest of the civilized world in terms of the way we treat intellectual property (something that's increasingly important what with the international trade and all).

Second, and more philosophically, it would implement a more progressive construction of intellectual property rights. Intellectual property lacks the trappings of traditional property, and the precise contours of IP rights have always been hard to define. For this reason, the government has always been deeply involved in creating and interpreting IP rights. Imposing a first to file requirement would make it clearer that IP rights are government-created, and one of the steps in securing those rights is asking for them in a timely manner.

Regarding remedy reform, this is definitely something that courts have had problems with. The eBay case didn't do much to clarify the injunction standard, and the Blackberry fiasco, which ended in settlement, didn't create any helpful legal precedents. Interestingly, the article claims that Congress' interest in this field was prompted in large part by fear among Congress members and staffers that their Blackberrys would go dark. This may be a needlessly self-interested justification for taking up legislation, but ideally the experience will lead lawmakers to take a more down-to-earth view of patent enforcement.

Disarming the Private Attorney General

Apparently other states are considering legislation akin to California's beloved Proposition 64, which limits the private enforcement of unfair competition laws by placing various factual and administrative hurdles in the way of class action suits. The main drag is the requirement that the private litigaent suffer an actual injury in reliance on the alleged unfair business practice (usually a misrepresentation), prohibiting private attorneys from suing on behalf of the general public.

Okay, the whole point of class action litigation is that no individual has suffered enough of an injury to merit an individual lawsuit, so this focus on injury is absurd. Proposition 64 was sold to California voters as a way to prevent mom and pop restaurant owners (who are just trying to feed their families, just like you and me) from being nailed by meritless shake-down lawsuits. An admirable goal, to be sure. But there are ways to do that without preventing corporate abuses by large companies to go unpunished by a disinterested state attorney general. Class action plaintiffs' lawyers generally aren't the best that the Bar has to offer. They're often not the consumer crusaders thay make themselves out to be. Of course they're in it for the contingency fees. But empowering private lawyers to sue on behalf of the general public is a perfectly legitimate way to enforce consumer protection laws, particularly where the state government can't be counted on to do it its damn self.

Unfortunately when you put the howling masses in charge of legislation you get black-and-white, overbroad policies like this. Hopefully if other states do take on tort reform the legislatures will be able to come up with more nuanced provisions.

Circuit Split

Dang.* Apparently the Ninth Circuit had 73 male clerks and 73 female clerks last year.

Against the grain, as always.

* By the way, I'm becoming increasingly frustrated with the number of VC posts devoted to Republican talking points. I also never read the comments. I think the best way to read that particular blog is by focusing on posts from the Brothers Volokh.

California's Wacky Electoral College Proposal

I heard about this on NPR the other day and found it intriguing. It's a proposal by the California legislature that would allocate all of California's Electoral College votes to the winner of the national popular vote (as opposed to the California popular vote, which is the current system). The article states that the legislation would become effective only if states with a combined vote count of 270 electoral votes did the same thing. Apparently Colorado, Illinois, Louisiana, and Missouri are considering similar legislation. If this eventually worked out, the winner of the national popular vote would be elected President and the Electoral College would essentially be eliminated apart from its formalisms.

This is obviously spurred by the 2000 election, when the debate over the legitimacy of the Electoral College gripped the nation mainly along partisan lines. Without the Electoral College, close presidential elections would largely be in the hands of the most populous states -- California, New York, and Texas. With the Electoral College, close elections are still largely in the hands of a few swing states. Either way, a handful of states wield disproportionate power in deciding who gets to be President. As a practical matter I think a system that chooses important states based on population is better than a system that chooses them based on purpleness (this coming, of course, from a life-long and committed resident of the great state of California).

But policy aside, is it constitutional? I've never studied Election Law, so I asked a colleague who had taken the course in law school. He said that he didn't study this sort of thing in Election Law, but did provide some valuable insights. He pointed out that states can't mandate how their Electors vote; state legislatures can only choose which Electors go to Washington. But he also pointed out that states currently choose the Democratic or Republican slate of Electors assuming they'll vote a certain way without forcing them to, so the statute could be workable on those grounds. He was also baffled at why any state other than California, New York, or Texas would go along with something like this. Finally, he made the observation that if the legislation is contingent upon a consortium of states with 270 votes, it would have to change after each census.

But this statute goes beyond changing the way electors are chosen and behave. It essentially eliminates the Electoral College system by allowing a consortium of do-gooder states to impose direct democracy by choosing the President based on the national popular vote. Could something like this happen without an actual Constitutional amendment? The reply was that we've already monkeyed around with the Electoral College without benefit of Constitutional amendments. The Electoral College as we know it today -- where electors are chosen based on statewide popular voting -- is a great deal different from the way it looked at the end of the eighteenth century. The fact that a change would have the substantive effect of removing all of the operative effects of the Electoral College shouldn't change that.

Okay, so it's constitutional. Back to policy. Is it a good idea? Armchair Justice says: YES!. The Electoral College strikes me as one of a number of compromises that was necessary to bring a series of would-be independent nation-states into a united federalist system (see the last clause of Article V of the U.S. Constitution for what is perhaps the most important compromise). It was a way of allowing smaller states to have more influence in the national election. That may have been a good idea back in the formative years of Our Nation, but it doesn't make a lot of sense today. There's no good reason for the President to be selected by other than a national popular vote.

But wouldn't this decrease the power of smaller states? Perhaps. If so, that's not a bad thing. A vote in California shouldn't be worth less than a vote in Wyoming simply because more people choose to live in California. Besides, as it stands now any state -- big or small -- only gets disproportionate influence in the Presidential election if it's a swing state. If California weren't reliably blue or reliably red, candidates would spend half their campaigns in the few hundred miles between San Diego and San Francisco.

I'd like to see this legislation come into effect, but it doesn't seem very likely.