Volume 2013, No. 5


PDF link Congressional Gridlock’s Threat to Separation of Powers

By Michael J. Teter

The principle of separation of powers serves as the foundation of our constitutional system. Though the doctrine’s meaning is somewhat amorphous, at its core rests a simple assumption: each branch must be able to fulfill its functional duties, while also serving to check the other branches. A gridlocked Congress undermines these basic expectations. The result is a legislature that relies on ad hoc committees, triggers, and gimmicks to make law; an executive that fills in the policy vacuum through presidential initiatives and who expands executive power without rebuke; and a judiciary exercising increasing authority over the meaning of statutes. In other words, our separation of powers scheme suffers because Congress cannot fulfill its constitutional role. To appreciate how gridlock threatens separation of powers requires a more complete awareness of the doctrine’s theoretical, historical, jurisprudential, and scholarly roots. From this review, I establish the broad contours of the separation of powers problem that gridlock poses. I then complete the analysis by turning to several real world examples to demonstrate how congressional stalemate actually undermines the separation of powers. In the end, I conclude that congressional gridlock poses such a threat to separation of powers that it places in peril the entire structural premises of American government.

PDF link Stern, Seriously: The Article I Judicial Power, Fraudulent Transfers, and Leveraged Buyouts

By Jonathan C. Lipson & Jennifer L. Vandermeuse

This paper offers a new way to understand the causes and cures of problems created by Stern v. Marshall, the Supreme Court’s 2011 opinion constricting bankruptcy court power. Stern held that a bankruptcy court, created under Article I of the Constitution, may not adjudicate a “tortious interference with gift” claim. Although the Stern majority said its holding was “narrow,” it has resulted in a significant spike in litigation over its meaning and scope. Why would such a seemingly arcane and technical opinion produce hundreds of disputes in such a short time?

We argue that litigation over Stern derives from indeterminacy in the rhetoric of the majority opinion, which is rooted in broad claims about the separation of powers that have little to do with bankruptcy. Because it is not possible to resolve Stern’s indeterminacy definitively, we look instead to its methodology, which centers on (1) the structural effects, and (2) the historical character of suits before bankruptcy courts.

We infer from the Court’s muted response to Chrysler’s bankruptcy that it worries little about bankruptcy courts’ structural capacity to interfere with separation-of-powers values. Instead, the Court has focused on (what we call) “historical formalism” to define the scope of bankruptcy court power. The Court’s historical formalism, in turn, looks to the “public” character of causes of action as they would have appeared in the framing era. While the boundary between public and private will sometimes be unclear, this suggests that we should consider the public qualities of bankruptcy disputes to decide whether bankruptcy courts have the power to adjudicate them.

We use the example of fraudulent transfer suits. Until Stern, bankruptcy courts regularly decided this important class of lawsuit under the Bankruptcy Code, especially as a way to redress harms caused by failed leveraged buyouts. Sternhas left courts and observers uncertain whether bankruptcy courts may still do so. We show that before, during, and after the framing era, fraudulent transfer suits commenced in bankruptcy had important public qualities that should, today, give bankruptcy courts the power to adjudicate them in most cases.


PDF link Akamai: Patent Claims Are Now Broader Than the Invention

By Brendyn M. Reinecke

A patent system stifles innovation if it grants an inventor too much power to exclude others from using his or her invention. Much like statutes, patent claims have several elements that identify the patented invention. In BMC Resources, Inc. v. Paymentech, L.P., the Federal Circuit Court of Appeals explicitly stated what was an arguably long-standing rule holding that to directly infringe a patent, a single entity must satisfy all elements of a claimed invention in the patent. The court reasoned further that when a party is accused of actively inducing another to infringe a patented invention, the induced infringer alone must satisfy all elements of the claimed invention. In Akamai Technologies, Inc. v. Limelight Networks, Inc. the Federal Circuit sitting en banc overturned BMC holding that for induced infringement, multiple entities can aggregate their actions to infringe a patent.

This Note analyzes the per curiam majority opinion and Judge Linn’s dissent in Akamai and concludes that the majority erred in overturning BMC. The single entity rule, as applied to induced infringement, fits squarely within the statutory framework of 35 U.S.C. Section 271, which provides liability for patent infringement. This Note argues that eliminating the single entity rule broadens the subject matter covered by a patent to include scenarios outside a patentee’s invention. Traditional principles of tort law, in addition to statutory liability for patent infringement, provide sufficient protection for inventors, eliminating the need for the Akamai court to overturn BMC. Finally, this Note suggests a statutory solution to reinstate the single entity rule as applied to induced infringement.


PDF link Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt

By Jason D. Sanders

In 2012, Wisconsin authorized the first state hunt of gray wolves. Wisconsin’s interest in wolf depredation is legitimate: the growth in wolf population has exponentially increased human-wolf conflicts and state expense. Yet, Wisconsin shares these wolves; 83 percent of gray wolves reside on Ojibwe reservations or on territory ceded by the Ojibwe, where the Tribes still have resource rights. The Tribes vehemently oppose the wolf hunt. The Ojibwe maintain a strong cultural kinship with wolves and have traditionally prohibited wolf hunting. The Tribes named wolves a “tribally protected species,” asserting a right to protect all the wolves shared with Wisconsin. Historically, the Tribes and the State cooperatively managed shared resources. However, the State initiated the wolf hunt despite tribal protestations, instigating the first break from cooperative management in decades. Both sovereigns have legitimate and conflicting interests and appear to risk their first major treaty rights litigation in decades.

This Comment analyzes the extent of each sovereign’s wolf rights in light of biological research and existing Indian law precedents. The first issue is the scope of the State’s obligation to respect the Tribes’ sovereign rights to protect and perpetuate reservation wolf packs. The second issue is the extent of the Tribes’ rights to protect ceded-territory wolves away from reservations. This Comment argues that the Tribes can protect and perpetuate reservation wolves as a component of inherent sovereignty. Wisconsin must implement a wolf policy that respects that sovereignty, including a hunt-free “buffer zone” of some wolf territory directly adjoining the reservation. However, the Tribes’ claim to protect all shared wolves is untenable, as tribal rights over wolves away from the reservation are much weaker. But the Tribes have rights correlated to those wolves and are entitled, at minimum, to a policy that ensures species survival; additionally, the Tribes can consider other options to protect wolves. Ultimately, this Comment proposes that both sovereigns can and should resolve this conflict through negotiation, continuing the tradition of cooperative management, and avoiding lengthy and expensive litigation.