Notes

Access Rights and the DMCA’s Anticircumvention Provision

Traditional media companies, such as newspapers, have struggled to adjust their profit models to the Internet economy. Some newspapers have instituted “paywalls,” digital locks that limit access to online articles with varying degrees of logistical and financial success. As paywalls proliferate to protect digital media, methods for circumventing those paywalls develop and propagate just as quickly. The Digital Millennium Copyright Act (DMCA) prohibits circumventing an effective technological means of control that restricts access to a copyrighted work. However, two competing interpretations of the statute have emerged. The more widespread approach, the infringement-nexus interpretation, requires a nexus between circumvention and traditional copyright infringement to prove a violation of the statute. By contrast, the access-right interpretation reads the statute literally as providing a new right of access control to owners of copyrighted works. This Note argues that the access-right interpretation correctly reflects Congress’s intent by recognizing that the right to access a work—not just to copy or distribute it—has real value that deserves protection. However, the DMCA has some inherent problems that prevent it from offering effective, meaningful protection to the right of access. This Note discusses those problems and offers solutions for ensuring more effective protection to this newly recognized and increasingly valuable right.

In an apparent victory for federalism, the Obama Administration has set out a policy of deference to state marijuana regulations, even when state laws conflict with federal prohibition. Critics of this policy have alleged that the executive is unconstitutionally leaving portions of federal law unenforced, effectively legalizing a drug that is still classified as a Schedule 1 narcotic. But in reality, current executive branch guidelines for the exercise of prosecutorial discretion are limited, vague, and largely unenforceable. Instead, the real risk is not that current federal nonenforcement policy will effectively legalize marijuana, but that the policy will fail to induce the reliance necessary for states to serve as effective laboratories of experimentation. This concern can be addressed, to an extent, by requiring that U.S. Attorneys use their enforcement authority in a more formal, transparent, and reliable fashion. However, constitutional limits on executive power mean that deregulation is likely to remain imperfect until a legislative solution is enacted.

In the wake of United States v. Windsor, the IRS determined that a validly married same-sex couple is married for federal tax purposes regardless of their state of residence. A same-sex spouse residing in a state that does not recognize same-sex marriage is required to file federal taxes as married under federal law but is prohibited from filing as married in-state, thereby creating incompatibility—a filing status mismatch—between her federal and state income taxes. In order to resolve this, states should not require a same-sex spouse to prepare a pro forma “unmarried” federal return for state filing purposes, as this is inefficient to administer and enforce, and creates an inequitable compliance burden on the taxpayer. Nor should states delink their base from federal income or remove from their state tax codes all references to federal tax law, as this reduces tax efficiency. Instead, states should place traditional concerns of tax efficiency and equality above narrower same-sex marriage policy objectives when crafting their tax systems. Tax efficiency and equity require that states at least permit resident same-sex married taxpayers to allocate income and deduction figures already computed for their federal returns when preparing their state returns.

The United States spends substantially more as a percentage of GDP on legal services than most other countries. Simultaneously, various indicators suggest this outsized spending does not result in public perceptions of greater fairness or justice. While the digital automation of legal work offers the potential to help address this problematic paradigm, the legal academy’s reception of automation in law has been critical. This Note responds to these criticisms by showing the demonstrable objective and subjective fairness benefits that legal automation can achieve—all while reducing costs.

Much work has gone into making sense of Justice Kennedy’s famously unconventional use of the rational basis test in Lawrence v. Texas. But why did invalidating state sodomy bans require any doctrinal innovation? Shouldn’t Lawrence have been an easy case under already-existing law? After all, legislation must serve a secular purpose to meet the Establishment Clause test laid out in Lemon v. Kurtzman, and the bans had no rationale but a pan-Abrahamic homosexuality taboo. So hadn’t the bans been unconstitutional since Lemon—that is, some thirty years before Lawrence?

Until Lawrence, there was an anomaly at the heart of the Lemon test: Courts took morality enforcement for granted as a secular purpose, irrespective of whether that morality had any nonreligious rationale. This prevented the Lemon test from reaching one of the areas that needed it most: so-called “morals legislation.” Hence Lawrence is in effect an Establishment Clause case despite purporting to sound in due process. For the rule of decision it applied in invalidating the bans for lack of a secular purpose is none other than the familiar first prong of the Lemon test: Legislation must do more than codify creed.

In reaffirming that religious belief never suffices as a basis for legislation, Lawrence gave Lemon the breadth it always should have had. When it applied the secular purpose requirement to morals legislation, Lawrence vindicated the cultural choice implicit in the First Amendment’s nonestablishment rule—our precommitment to a legal system grounded in reasons that are open to all Americans.

The cost of prescription drugs, a function of the nexus of patent law and antitrust law, has recently been thrust into the spotlight. In the shadow of the Federal Trade Commission’s vigorous challenges to anticompetitive agreements between branded manufacturers and their potential generic competitors, a new player entered the administrative patent invalidity arena—noncompetitors, such as hedge fund managers, who, despite their reputation for seeking profit at all costs, asserted a seemingly puzzling altruistic interest in invalidating certain patents that prevent generic competitors from entering the market. In light of “abuse of process” accusations and calls for sanctions, this Note suggests that corporate law may facilitate an understanding of the role of noncompetitors in patent invalidation. Using the corporate law phenomenon of greenmail as an analogy, this Note argues that noncompetitors may actually facilitate competition and, as such, should be permitted to continue filing administrative patent challenges.

In response to widespread concerns about the extent to which “trolls” distort the patent process and other deficiencies in the patent system, Congress created two new administrative trial processes by which a third party may challenge the validity of a patent in a more streamlined and less costly way than through a civil trial. Unfortunately, the very features that made these administrative quasi-judicial proceedings efficient also make them ripe for anticompetitive abuse. This behavior is especially problematic when it comes to bargaining over licenses for patents recognized as a “standard” or deemed to be “essential” to a particular industry. In this context, instituting administrative trials to determine patent validity may actually create an inequality in bargaining strength that allows the potential licensee to extract rents from the patent holder—especially if that licensee possesses market power.

This Note explores the source and nature of these anticompetitive harms and recognizes that, as currently applied by the courts, antitrust law cannot be used to reach these abuses. Noerr-Pennington immunity shields firms from exposure to antitrust liability with respect to most government interactions, with only narrow exceptions for sham petitioning and litigating activity. In the patent context, these exceptions are far too narrow and make antitrust liability functionally unobtainable. In particular, this Note argues that the “sham litigation” exception to Noerr-Pennington should be expanded to encompass a wider range of litigation tactics—including instituting an administrative proceeding—to deter anticompetitive behavior that distorts both bargaining over patent licenses and the market more broadly.

Climate change is expected to have immensely detrimental effects on agriculture. Changing climate patterns will also make many locations inhospitable to the crops currently grown there. In order to mitigate the effects of climate change on agriculture, farmers should adapt by changing the mix of crops grown in a given location. Federal crop insurance masks incentives American farmers would otherwise have to adapt to climate change through crop choice. Large premium subsidies—with most insured farmers paying less than half of the actuarially sound premium—are a huge part of this problem. This Note explains the connection between crop choice and climate change. It then analyzes existing proposals for reforming the crop insurance system to better incentivize adaptation to climate change, and highlights some political and practical obstacles to doing so. Finally, it argues that a tiered subsidy system—in which crops at high risk of failure due to location-specific climate risks would receive lower subsidies—could be a feasible, incremental solution to the problem.

Preclusion law is notoriously convoluted. Courts have made no secret of their distaste for the doctrine, describing it variously as “conflicting,” “inconsistent,” “breeding confusion,” and ultimately “not very well liked.” Though the Supreme Court has consolidated issue and claim preclusion into a single coherent whole, this Note argues that the merger of res judicata and collateral estoppel in our modern preclusion law is incomplete. These different preclusions are motivated by different rationales: Res judicata protects private closure of parties, while estoppel began as a defense of judicial interests and expanded to forward systemic ones. Though private and systemic interests may often align, this alignment is not inevitable. In the case of public rights, failure to keep these doctrines distinct has undermined judicial ability to offer closure. Attention to the differences in historic preclusion doctrines ultimately provides a direction for modernization in the form of intervention.

Our Government derives its legitimacy from the consent of the governed, generally measured through our elections. When incumbent powers create structures and rules for our politics that entrench the status quo and limit voter control, however, the legitimacy of that consent is tested. For more than fifty years, and in spite of the “political question doctrine,” the Supreme Court has adjudicated challenges to franchise restrictions, gerrymandering, ballot access provisions, and more. In doing so, the Court utilizes doctrinal frameworks that focus on harms to individual rights and not on structural harms to the competitiveness, accountability, and responsiveness of our politics. This myopic view leaves systemic entrenchment and political lockup largely untouched. Scholars have identified these doctrinal deficiencies, but have not suggested an alternative textual basis for judicial intervention in these cases. This Note offers a potential solution in the Guarantee Clause. It argues that the Clause embodies a promise of popular sovereignty in the states. I contend that the Guarantee Clause can and should be revived to unburden the courts from the deficiencies of existing doctrine and provide a textual basis for addressing the problems of political malfunction.