Guest Post

  • January 29, 2016
    Guest Post

    by Jessica Pezley, Judicial Clerk, Oregon Circuit Courts

    The debate over the constitutionality of the death penalty took on a renewed vigor last term in Oklahoma’s lethal injection case, Glossip v. Gross, in which Justice Breyer in dissent suggested it “highly likely that the death penalty violates the Eighth Amendment.” While the Court decided 5-4 that Oklahoma’s use of the lethal injection drug midazolam—part one of a three-part drug cocktail meant to numb an individual from the pain caused by the other drugs working to stop the heart—was constitutional, the close vote and impassioned dissent highlighted a growing skepticism of capital punishment in the Court. Flash-forward to this term and the issue was high on the docket with four cases raising procedural questions about the death penalty. Two have since been decided.

    First, in Hurst v. Florida the Court deemed unconstitutional a sentencing scheme that charged the judge, and not a jury, with making the ultimate sentencing decision in capital cases. Decided 8-1, Hurst seemed to indicate the direction the Court would take in its three remaining death penalty cases. Then, just over a week later in Kansas v. Carr/Kansas v. Gleason, the Court voted 8-1 against recognizing additional Eighth Amendment procedural protections. What accounts for this difference? And what do these inconsistent results spell out for the remaining two death penalty cases, Foster v. Chatman and Williams v. Pennsylvania?

    In Carr, the Kansas Supreme Court vacated three death sentences—those of the Carr brothers and of Gleason, a defendant in an unrelated case—because of the lower court’s failure to affirmatively instruct the jury that mitigating factors need not be proved beyond a reasonable doubt, and in the case of the Carr brothers, not allowing severance at the sentencing phase of trial. Kansas’s attorney general challenged this decision, and the Court granted certiorari on the question of whether the Eighth Amendment demands the procedural protections recognized by the Kansas Supreme Court.

    It became readily apparent that the respondents in Carr were in trouble. Justice Scalia halted oral argument to recount, at length, the grisly details of the Carr brothers’ crime spree, known as the Wichita Massacre. It came as no surprise then, when the opinion for the case was handed down, that Justice Scalia, writing for the majority, used over two pages of his 18-page opinion to again hash out the horrendous facts. In the remaining pages, the Court found little trouble in dispensing with the respondents’ arguments.

  • January 26, 2016
    Guest Post

    by Kristen Osenga, Professor of Law, University of Richmond School of Law; Senior Scholar, Center for the Protection of Intellectual Property

    *This post is part of the ACSblog Symposium on Patent Law Reform.

    I have often argued that we do not need so-called patent “reform.” But I’ve had a change of heart. We absolutely need patent reform, but not the kind proposed in the Innovation Act, H.R. 9, and the PATENT Act, S. 1137. To get the real kind of reform that will encourage a strong and vibrant innovation economy, we first need a role reversal. Let me explain.

    If you ask any first-year law student about the roles of Congress and the courts, the likely answer is that Congress makes the laws and the courts interpret them. That answer, although simplistic and lacking nuance, is essentially correct. What’s happening currently in patent law, however, is the exact opposite, and innovation is going to suffer as a result. Courts, especially the U.S. Supreme Court, are creating brand new rules, making up patent law from whole cloth. Congress, on the other hand, is considering bills that micromanage the courts, trampling on areas traditionally left to judicial discretion and seeking to procedurally stack the deck against individual inventors and small companies who own patents.

    To illustrate the above point, let’s consider two issues: (1) patentable subject matter eligibility and (2) the customer suit exception.

    Many years ago, Congress spoke plainly in 35 U.S.C. §101 about the types of inventions that were eligible for patenting: processes, machines, manufactures, and compositions of matter. The courts initially (and correctly) interpreted that provision broadly as including “anything under the sun made by man” and limited by only a few judicially created exceptions. Recently, and devoid of any legislative intervention, the courts have been chipping away at the types of inventions eligible for patent protection. After the Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank Int’l, many commentators have suggested that the realm of inventions that can actually be patented has significantly diminished. The Alice opinion represents a sea change, or significant alteration, in the previously existing law . . . and yet it occurred entirely within the courts.

    The activity surrounding the customer suit exception, on the other hand, demonstrates how Congress is trying to undermine judicial discretion in favor of bright line rules that make it systematically harder for individual inventors and small companies to defend their patents. In appropriate circumstances, judges traditionally will stay a patent infringement suit against a small retailer or end-user customer in favor of a suit against a manufacturer when the infringement results from the customer using the manufacturer’s product. This makes sense, for example, when a patent owner sues a mom-and-pop coffee shop for infringement based on the coffee shop’s use of an infringing wireless router. The company that manufactures and sells the router is in a much better position than the coffee shop to dispute whether or not the router is infringing the patent. The courts have been staying cases like these for years, and it’s working well.

  • January 25, 2016
    Guest Post

    by Elizabeth Gill, Senior Staff Attorney, ACLU of Northern California

    The answer should be “no.” Yet that’s the issue in a case the ACLU and the law firm of Covington & Burling LLP recently filed in California, Chamorro v. Dignity Health. Our clients in that case include Physicians for Reproductive Health, a nationwide physician network, and Rebecca Chamorro, a pregnant woman living in Redding, Calif., who, with her doctor, decided that it was in her best medical interests to get a tubal ligation—or get her tubes tied—immediately following the delivery of her third child by C-section.

    Although Rebecca’s doctor would perform the tubal ligation, an incredibly safe, common procedure that is the chosen form of contraception for a quarter of women who use contraception, the hospital refused to allow him to do so. Even though getting a tubal ligation immediately after delivery (or postpartum) is the medical standard of care for that procedure, the doctor is being prevented by the hospital from providing Rebecca with the standard of care because the hospital follows religious directives put out by the U.S. Conference of Catholic Bishops, which prohibit most reproductive healthcare and characterize sterilization procedures like tubal ligation as “intrinsically evil.”

    Rebecca, like many other women we’ve heard from, was shocked. How could a hospital prevent her doctor from providing her with basic medical care based on the views of Catholic Bishops? Sadly, Rebecca’s doctor was not shocked. Over the past eight years, Mercy Medical has refused to allow him—just one obstetrician in Redding—to perform postpartum tubal ligations for approximately 50 patients. Because Mercy Medical is the only hospital in Redding with a labor and delivery ward, women like Rebecca have few options; in fact, the closest hospital that will allow doctors to perform postpartum tubal ligations is more than 70 miles away.

    Nor is this a problem at just one hospital in Redding. Over the past 15 years, Catholic-affiliated hospital chains, like Dignity Health, have aggressively and rapidly expanded. Dignity Health claims to be the largest hospital provider in California, and the fifth largest healthcare provider in the country. Nationwide, almost one out of nine hospital beds are in Catholic-affiliated hospitals. Most of these hospitals follow the Catholic Bishops’ religious directives, even though national data show that 52 percent of ob-gyns working in these hospitals had conflicts with their hospital requiring them to follow the directives.

    These hospitals are also not small or private or primarily charitable operations. Dignity Health’s hospitals are licensed as general acute care hospitals in California, and they are open to the general public, the vast majority of which is not Catholic or does not live by the religious directives. Dignity Health claims to have posted a net income of $558 million in fiscal year 2015, based on revenues of $12.4 billion. Much if not most of this revenue comes from public funding. In previous years’ tax filings, over 50 percent of Dignity Health’s revenue was from Medicare and Medicaid payments alone. That does not even take into account the public funding Dignity Health receives through direct government grants, tax exempt bond financing, and tax exempt status as a nonprofit corporation.

  • January 22, 2016
    Guest Post

    by David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

    There are cynics who say that Supreme Court justices are just politicians in black robes, willing to manipulate the law, and discard the Court’s own precedents, to suit their political views. But that’s misleading: the Court does not overrule its precedents very often at all. According to one analysis, in the last 75 years -- a period that includes activist Courts and restrained Courts, liberal Courts and conservative Courts -- the justices, in constitutional cases, have overruled just 91 of their previous decisions: an average of just over one each year.

    Oral argument this month in Friedrichs v. California Teachers Association made it look like a nearly 40-year-old decision called Abood v. Detroit Board of Education might be this year’s addition to that list. That would make no sense at all.

    Friedrichs, and Abood, are about the fees that public employees pay when they are represented by a labor union. Unions, of course, bargain with employers on behalf of employees, over wages, hours, and terms of employment, and they are required by law to represent all of the workers in their bargaining unit -- union members and non-members alike -- equally. Unions also engage in political activity, like campaigning on behalf of candidates. Since all employees benefit from the union’s bargaining and other workplace-related activity, the employer and union are allowed to agree that all employees will chip in to support that part of the union’s work. Otherwise, the entire arrangement might unravel: people will not pay for something -- in this case, the work that the union is required to do on their behalf -- if they can get it for free. At the same time, though, employees who disagree with the union’s political activities have a right, under the First Amendment, to refuse to pay for them. That’s what Abood held.

    It seems like a sensible compromise. But sensible or not, it has been the law since 1977. The Friedrichs litigation was ginned up by some conservative lawyers to try to get the Supreme Court to overrule Abood and hold that employees have a right to refuse even to contribute to work that the union is doing on their behalf.

    Nothing about Abood would justify the Court’s overthrowing it. 

    • Abood was a unanimous decision, and the Supreme Court has invoked it, cited it, implemented it, and relied on it many times in the intervening decades -- often unanimously. Lower courts have done the same. Only in the last few years -- decades after Abood was on the books but coinciding, of course, with a wide-ranging political attack on public employee unions -- has Abood’s status as a precedent been seriously challenged.
    • It’s not just that the courts have relied on Abood – twenty-three states have labor laws that rely on the Abood compromise. That means that collective bargaining agreements -- the workplace constitutions -- governing millions of employees and resolving countless workplace challenges will have to be rewritten, at enormous cost, monetary and otherwise, to the effective working of state and local governments.
    • And Abood is not just about labor unions. “Integrated” bar associations, to which lawyers are typically required to pay dues, engage in various forms of speech; the Supreme Court held that Abood governs that arrangement. The Court drew an analogy to Abood when it ruled that state universities could require students to pay activities fees that support student groups, including groups that propagated messages with which some students disagreed. If the Court overrules Abood, it is only a matter of time before litigants will challenge those institutions, too. Unless the courts are going to say that there are special rules that, for some reason, apply only to labor unions, they will have a hard time explaining why those other institutions are different.

    The teachers who are challenging Abood -- their lawyers, anyway -- portray this all as an epic battle about free speech and the First Amendment. But it is worth keeping things in perspective. Abood leaves teachers, and all other public employees, completely free to criticize their union as vociferously as they like. They can attack the union’s leadership, its priorities, or its tactics. Meanwhile, everyone accepts that teachers’ rights to speak in the workplace can be limited in order to make sure that schools will function well. Teachers cannot say whatever they want in a classroom; they cannot disrupt relations with their colleagues; they cannot speak abusively to students or parents.

  • January 22, 2016
    Guest Post
    by Daniel Nazer, Staff Attorney and Mark Cuban Chair to End Stupid Patents, Electronic Frontier Foundation
    *This post is part of the ACSblog Symposium on Patent Law Reform.
    If you got sued for patent infringement in 2015, chances are pretty good that you were sued in the Eastern District of Texas. An astonishing 2,514 patent lawsuits – or 44 percent of the national total – were filed there this year. Over 1,500 of these cases were filed before a single judge: Judge Rodney Gilstrap. While patent suits have clustered in Eastern Texas for nearly a decade, this year saw an unprecedented concentration. This extreme forum shopping raises important questions about procedural fairness and due process.
    Why are so many patent cases filed in the Eastern District of Texas? It’s not for the barbecue. And it’s not because the remote, largely rural district is a technology hub. Rather, it’s because local rules and practices make the district attractive to patent plaintiffs. More specifically, local practices make the district very attractive to companies – known as patent trolls – whose sole business model is to buy patents and sue.
    For example, the Eastern District of Texas judges that most frequently hear patent cases have standing orders requiring parties to submit letter briefs asking permission to file for summary judgment. This makes it harder for defendants to avoid a costly trial. A recent study found that judges in the district granted only 18 percent of motions for summary judgment on the basis of patent invalidity. (In contrast, the grant rate nationwide was 31 percent.) Considering that this study did not include cases where the defendant wasn’t even permitted to file for summary judgment in the first place, it follows that the true grant rate in the Eastern District of Texas is even lower.
    In addition to the inconvenience of litigating in a distant forum, local rules make discovery more expensive. The local discovery order in patent cases requires parties to automatically begin producing documents before the other side even requests them. This practice ‒ which, in EFF’s view, is not consistent with the Federal Rules ‒ particularly burdens patent defendants. That is because unlike shell company patent trolls, operating companies need to search and produce a huge volume of documents. These burdensome discovery practices create pressure to settle weak cases and thus attract trolls to the district.