Notes

The world faces collective action problems that are global in nature and scope, rendering nation-states unable to achieve desired goods individually. Issues such as global climate change and systemic financial risk create externalities that impel the existence and intervention of a world government to avoid suboptimal market equilibria, free-riding, and moral hazards. I submit the European Union’s principle of subsidiarity as an organic, legitimizing framework for global governance that both compels and cabins a world government. Subsidiarity optimizes social welfare by enabling a world government to achieve desired goods that nation-states would be otherwise unable to obtain individually because of collective action problems. But subsidiarity also limits a world government through a presumption in favor of local regulation as a matter of national autonomy and efficiency. The efficiency concern also enables subsidiarity to be an expansive principle for global governance because it accommodates both public and private forms of collective action. Public forms of collective action include public regulations, treaties between nations, and public institutions like the World Trade Organization. Private forms of collective action include free-market Coasian bargaining between private parties and the efforts of private international institutions like Greenpeace. Because subsidiarity accounts for these diverse institutions in a large and complex world, it is an ideal balancing principle for global institutional choice.

Victims of consumer fraud often struggle to bring their claims as nationwide class actions under traditional state fraud laws due to (1) the application of many states’ laws to potential class members’ claims and (2) the fact that fraud claims generally raise a significant individual factual issue—whether the claimant personally relied on the defendant’s misrepresentation. The civil remedy provisions in RICO offer an attractive alternative. RICO overcomes the first hurdle by providing plaintiffs with a single federal law under which to file suit. This Note demonstrates that RICO allows plaintiffs to overcome the second hurdle as well. Rather than showing that they incurred harm when they purchased products in reliance on a misrepresentation, plaintiffs can achieve class certification by framing their injury as a harm common to all purchasers of a product: specifically, an increase in the price of the product due to artificially increased demand. Recently, several classes have moved successfully for certification using this approach. This Note provides a theoretical framework to justify this method. Rather than committing the same error as most courts and commentators by viewing this approach as an extension of the fraud-on-the-market presumption of reliance from securities fraud cases, I argue that there is no need to presume reliance because the Supreme Court’s holding in Bridge v. Phoenix Bond & Indemnity Co. makes clear that individual, personal reliance is not necessary to prove causation in RICO claims. Instead, plaintiffs can satisfy RICO’s causation element through statistical analyses that prove aggregate reliance—reliance on the fraud by a large enough number of individuals to increase the price of the product above the price that it would have been absent the fraud. As all purchasers of the product experience the same price differential, the statistical analyses provide common proof of causation of identical harm, eliminating problematic individual inquiries and opening the door to certification of nationwide consumer fraud class actions.

This Note examines judicial review and oversight of state educational adequacy remedies in light of education budget cuts proposed during the recent recession. Educational adequacy litigation has been relatively successful in establishing children’s affirmative right to education under state constitutions, but due to separation of powers concerns, most state courts have been quite deferential to legislatures in reviewing remedies for constitutional violations. This leaves many schools underfunded and under-resourced in spite of successful adequacy litigation—a problem that is aggravated during times of recession, when many states face pressure to cut education budgets. This Note examines these issues using functional separation of powers theory, comparative analysis of state and federal government functioning, and pragmatic considerations related to remedial compliance. It argues that state courts should apply heightened judicial review to ensure remedial compliance and particularly to review state education budget cuts that may disrupt educational adequacy remedies. In this way, state courts can be more vigilant in maintaining educational adequacy.

One of the basic requirements for patenting an invention is that the invention be
nonobvious. Following the Supreme Court’s decision in Graham v. John Deere,
secondary considerations—also known as objective indicia of nonobviousness—
have been considered when determining whether an invention is nonobvious. Secondary
considerations provide tangible evidence of the economic and motivational
issues relevant to the nonobviousness of an invention. Types of secondaryconsiderations
evidence include commercial success, long-felt but unmet need, and
copying by competitors. For many years, the Federal Circuit’s teaching, suggestion,
or motivation test often eliminated the need for the court to rely on secondary considerations
in the obviousness inquiry. Due to the Federal Circuit’s stringent application
of this test, the obviousness inquiry was generally resolved by examining the
prior art.
In 2007, the Supreme Court decided KSR v. Teleflex, which endorsed a flexible
obviousness analysis and rejected the Federal Circuit’s strict application of the
teaching, suggestion, or motivation test. Following KSR, scholars predicted that
secondary-considerations evidence would provide a critical tool for patentees
seeking to demonstrate the nonobviousness of an invention. Inspired by that prediction,
this Note evaluates how secondary-considerations evidence has been utilized
in the first few years post-KSR. It finds that the Federal Circuit has continued to
impose stringent relevancy requirements on the use of secondary-considerations
evidence, and that it remains difficult for patentees to employ secondary considerations
in favor of a nonobviousness conclusion. Specifically, secondaryconsiderations
evidence has not been used with much success outside of pharmaceutical
patent cases. More often than not, the Federal Circuit has summarily dismissed
secondary-considerations evidence as insufficient in cases involving
mechanical arts patents. This Note concludes by suggesting that the Federal
Circuit’s current practice for using secondary considerations should inform proposals
by scholars for industry-specific tailoring of the patent system and patent
law’s use of secondary considerations, and that the Federal Circuit should continue
to engage with secondary-considerations evidence in order to provide more guidance
to lower courts during the post-KSR transition period.

How, and how much, does the Constitution protect against political entrenchment?
Judicial ineptitude in dealing with this question—on display in the modern Court’s
treatment of partisan gerrymandering—has its roots in Luther v. Borden. One hundred
and sixty years after the Luther Court refused jurisdiction over competing
Rhode Island state constitutions, judicial regulation of American structural democracy
has become commonplace. Yet getting here—by going around Luther—has
deeply shaped the current Court’s doctrinal posture and left the Court in profound
disagreement about its role in addressing substantive questions of democratic fairness.
While contemporary scholars have demonstrated enormous concern for the
problem of the judicial role in policing political entrenchment, Luther’s central role
in shaping this modern problem has not been fully acknowledged. In particular,
Justice Woodbury’s concurrence in Luther, which rooted its view of the political
question doctrine in democratic theory, has been completely ignored. This Note
tells Luther’s story with an eye to the road not taken.

In 2010, the Environmental Protection Agency (EPA) promulgated the Tailoring
Rule. The Rule “tailors” the numeric triggers for permitting requirements in the
Clean Air Act by revising the numbers upward by several orders of magnitude.
EPA argued that doing so was necessary to avoid the impossible administrative
burden that would result from having to carry out the plain text of the Act as
applied to greenhouse gases. At first glance, the Tailoring Rule seems to be a classic
case of an agency exceeding its authority and subverting congressional intent. Upon
further examination, it becomes clear that EPA is grappling with an important issue
that current administrative law doctrine fails to adequately address: What should an
agency do when it does not have the resources to carry out all of its required duties?
This Note argues that courts should use the rationale of administrative necessity to
allow agencies to openly demonstrate that it would be impossible to fully carry out
their nondiscretionary statutory duties. Upon that demonstration, courts should
allow agencies to promulgate regulations that propose a solution to that
impossibility.

The Environmental Protection Agency’s (EPA) recent settlement of environmental
cleanup claims against Asarco, the highest such settlement in history, highlights the
incongruity between the tools at the Agency’s disposal to recover cleanup costs and
its actual behavior in pursuing such claims. The Comprehensive Environmental
Response, Compensation, and Liability Act of 1990 (CERCLA) provides statutory
authority that should allow EPA to force polluters to fully bear the burden of
cleaning up pollution. However, despite EPA’s relative success against solvent
responsible parties, EPA appears to be less aggressive in pursuing CERCLA
claims against insolvent polluters, even though the Bankruptcy Code provides additional
tools to give EPA an advantage relative to creditors. This Note explains the
statutory advantages that EPA has under CERCLA and the Bankruptcy Code, and
then explores how EPA fails to behave like a rational economic actor in pursuing
its CERCLA claims. I conclude by positing political factors and budget shortfalls
as two potential explanations of EPA’s behavior.

For the great majority of its history, the written description requirement was an
often-ignored relic of the patent statute. As technology advanced, the written
description requirement developed teeth as a means for invalidating patent claims
during litigation. Written description doctrine reached its peak in Ariad
Pharmaceuticals, Inc. v. Eli Lilly & Co., when the Federal Circuit created a significant
setback for groundbreaking innovation. Ariad demonstrated that the written
description doctrine lacked sufficient recognition of the fundamental policies and
purposes of the patent system and that this could have serious consequences for
innovation. This Note attempts to rectify the written description doctrine by
reorienting the doctrine in innovation policy. To do so, I first apply an alternative
version of the “prospect theory” of patents to conventional patent policy. Based on
this policy calculus, I then devise a reformed hypothetical innovation test that looks
outside of the “four corners” of the patent and considers the larger impact that the
written description has on the patent system. Without such doctrinal reform, the
written description doctrine of Ariad and its legacy risks undermining the incentives
that motivate inventors to undertake cutting-edge technology.

Humans have a complicated relationship with animals. Animals are at the same
time companions, food, subjects of research, and competitors for resources. Determining
how we should treat them in these different contexts—setting the standards
that capture our concern for their welfare—is difficult. Our contemporary scientific
understanding of animal behavior and physiology should ultimately inform our
standards for animal welfare. However, what science cannot determine is how
much concern we should have in the first place.

This Note focuses on those laws that aim to set humane standards for the treatment
and care of animals. When legislatures place the burden of setting those standards
on administrative agencies, courts should ensure that the meaning of “humane”
relied upon by an agency reflects more than science alone. Through examining a
recent opinion of the Supreme Court of New Jersey, this Note argues that such
standards must incorporate the social value that we place on mitigating animal pain
and suffering and provides examples of how such value should be measured. Furthermore,
judicial review of agency action can be conducted in a manner that both
respects the institutional role of the court and ensures that agencies have actually
made tough ethical decisions.

In July 2010, Nasser Al-Aulaqi, the father of suspected terrorist leader and U.S. citizen Anwar Al-Aulaqi, filed a lawsuit alleging that his son had been placed on a targeted killing “hit list” by the U.S. government. In dismissing the suit, Judge John D. Bates pointed out an extraordinary aspect of the current law of counterterrorism: Prior judicial consideration is required under the FISA Amendments Act of 2008 to target suspected terrorists like Anwar Al-Aulaqi abroad for surveillance, but it is unnecessary under U.S. law to seek judicial authorization to target such individuals for assassination. This apparent antilogy in the law creates a “surveil or kill” dilemma for the government. On the one hand, current law burdens the President’s ability to engage in foreign intelligence surveillance of suspected threats; on the other, it incentivizes aggressive counterterrorism interventions like the CIA’s drone strike program. Indeed, the U.S. government ultimately killed Al-Aulaqi, along with another U.S. citizen suspected of aiding al Qaeda in the Arabian Peninsula, without ever receiving judicial approval or making public any formal charges against them.

In this Note, I explore the constitutionality of the current legal regime established by the FISA Amendments Act of 2008. Specifically, I argue that the statute’s protections for U.S. citizens abroad, while a laudable extension of civil liberties, constitute an unconstitutional infringement of the President’s inherent authority to engage in warrantless foreign intelligence surveillance overseas. By imposing statutory limitations on the President’s power in this context that go beyond the baseline requirements of the Constitution, Congress has encroached upon inherent executive authority and therefore has violated a formal understanding of separation of powers.