Volume 2016, No. 2

PDF link Table of Contents


PDF link Disparaging the Supreme Court, Part II: Questioning Institutional Legitimacy

By Brian Christopher Jones

For all intents and purposes, it now appears time to welcome the Supreme Court to an unrelenting new world (to them) of intense and widespread disparagement. For the Court, drastic differences have taken place in recent years: no longer are talks at local colleges and universities immune from publicity; no longer are holiday trips matters of utmost privacy; no longer are significant textual changes made to post-announcement decisions exempt from scrutiny; no longer are changes of opinion on pending cases protected by confidentiality conventions; no longer are unsigned opinions actually “anonymous”; no longer is it just a few learned and professional journalists and legal academics who report on and analyze the Court; and most importantly, no longer does the American public—including journalists, academics, lawyers, and others—misunderstand or revere the Court so much that they are afraid to criticize and disparage the institution and its Justices.While analysis of the Court in the twentieth century provided a realistic view of the extraordinary legal and political power of the institution, analysis in the twenty-first century appears to be trending towards a de-formalization of the Court, which, perhaps unsurprisingly, has led to increased and widespread disparagement of the institution. This essay builds on my earlier work regarding disparagement and the Court and hopes to provide further insights into the breadth of what the Court is now up against—especially as regards its institutional legitimacy.

PDF link Three Wrongs Do Not Make a Right: Federal Sovereign Immunity, the Feres Doctrine, and the Denial of Claims Brought by Military Mothers and Their Children for Injuries Sustained Pre-birth

By Tara Willke

Through the application of the judicially created Feres doctrine, female service members who suffer injuries during pregnancy or the birthing process as a result of military medical malpractice are barred from seeking recovery under the Federal Tort Claims Act (FTCA) and, depending on the jurisdiction in which the negligent medical treatment occurs, their children may also be barred from seeking recovery for the injuries they sustain as the result of the negligent prenatal medical care. The Feres doctrine spawned from the United States government’s passage of the FTCA in 1946, which was intended to be a broad waiver of the government’s sovereign immunity. Pursuant to the FTCA, the government could be held liable for torts committed by its employees. The FTCA contains certain exceptions to this general waiver but never did, and currently does not, explicitly bar service members from bringing suit for injuries they sustain during their military service that do not fall within one of the enumerated exceptions.

In 1950, however, the United States Supreme Court, in Feres v. United States, held that service members were barred from bringing claims pursuant to the FTCA if the injury to the service member occurred “incident to service.” The “incident to service” test is not tied to any one of the enumerated exceptions in the FTCA and is, thus, an exception created by the Court. Federal courts have tried to apply this test and have struggled to determine when an injury occurs “incident to service,” and injuries have been found to occur incident to service simply if the service member was on active duty at the time of the injury, regardless of whether the injury resulted from the service member’s military duties.

Thus, in cases involving claims brought by female service members for injuries suffered during their pregnancies or births as the result of military medical malpractice, courts have, with very little discussion or rationalization, held that the injuries occurred “incident to service” and are barred by the Feres doctrine. The child’s claim may also be barred under the theory that it derived from the mother’s injury and is barred because the mother’s injury is barred.


PDF link Horizontal Innovation and Interface Patents

By Bernard Chao

Scholars understandably devote a great deal of effort to studying how well patent law works to incentivize the most important inventions. After all, these inventions form the foundation of our new technological age. But very little time is spent focusing on the other end of the spectrum, inventions that are no better than what the public already has. At first blush, studying such “horizontal” innovation seems pointless. But this inquiry actually reveals much about how patents can be used in unintended and arguably anticompetitive ways.

This issue has roots in one unintuitive aspect of patent law. Despite the law’s goal of promoting innovation, patents can be obtained on inventions that are no better than existing technology. Such patents might appear worthless, but companies regularly obtain these patents to cover interfaces. That is because interface patents actually derive value from two distinct characteristics. First, they can have “innovation value” that is based on how much better the patented interface is than existing technology. Second, interface patents can also have “compatibility value.” In other words, the patented technology is often essential to make products operate (i.e., compatible) with a particular interface. In practical terms, this means that an interface patent that covers little or no meaningful advance can give a company the ability to extract rents and foreclose competition.

This undesirable result is a consequence of how patent law has structured its remedies. For years, patent law has implicitly awarded both innovation and compatibility values. Recently, the courts have taken a sensible first step and excluded compatibility value from reasonable royalty recoveries for standard essential patents. This Article argues that the law needs to go further and do the same for all essential interface patents. Additionally, patent law should discard the use of injunctions and lost profits in these contexts because both of these remedies inevitably award compatibility value. The sole remedy should be an innovation-value-based reasonable royalty. This proposal has two benefits. First, it would eliminate the incentives for wasteful patents on horizontal technology. Second, and more importantly, the value of all interface patents would be better aligned with the goals of the patent system.

PDF link Disfavored Treatment of Third-Party Guilt Evidence

By David S. Schwartz & Chelsey B. Metcalf

Forty-five states and ten federal circuits impose some type of disfavored treatment on a criminal defendant’s evidence that a person other than himself committed the crime. When the defendant disputes that he is the perpetrator of the crime charged, such third-party guilt evidence is always relevant. But the so-called direct connection doctrine and its variants— collectively, the direct connection doctrines—impose additional burdens that a defendant must meet before this relevant evidence will be admitted. This disfavored treatment stems from discredited and abandoned concepts of evidence law and is out of step with the Federal Rules of Evidence and modern evidence codes. The direct connection doctrines wrongly transfer credibility questions from the jury to the judge and raise only minimal FRE 403–type dangers to justify their systematic exclusion. Moreover, the direct connection doctrines unconstitutionally interfere with the defendant’s right to present a complete defense. They lack any non-arbitrary justification and cannot be logically reconciled with the fundamental principles that the prosecutor bears the entire burden of proof and that a jury may acquit based on only a reasonable doubt.


PDF link You Get What You Pay For: Why Wisconsin Should Adopt Uninsured and Underinsured Motorist Stacking Waivers

By Alyssa L. Kempke

The ability to stack, adding multiple uninsured motorist (UM) or underinsured motorist (UIM) policies together to fully compensate a party for the amount of his or her injuries sustained in an automobile accident, has been a prevalent subject of insurance litigation in Wisconsin. Wisconsin currently allows insurance companies to include anti-stacking provisions in UM and UIM policies, which restrict injured parties from stacking multiple policies. Yet, Wisconsin has not always permitted anti-stacking provisions— Wisconsin’s position on stacking has changed four times in the last two decades.

Wisconsin’s current stacking scheme, permitting anti-stacking clauses in UM and UIM policies, does not fully compensate consumers in catastrophic accidents and does not provide consumers with the benefits for which they paid a premium. This Comment suggests that Wisconsin implement legislation permitting stacking waivers for UM and UIM policies, similar to Pennsylvania’s statute. Pennsylvania’s stacking waiver statute allows consumers to waive their right to stacking UM and UIM policies in exchange for a lower premium. This Comment analyzes the practical implications and anticipated criticisms of adopting a stacking waiver statute in Wisconsin. Rather than adopt the Pennsylvania stacking waiver statute verbatim, this Comment suggests four changes the Wisconsin legislature should make to ensure the statute is more clear and practical for Wisconsin. Finally, this Comment concludes with a sample statute the Wisconsin legislature should adopt—an equitable compromise that resolves Wisconsin’s oscillating stance on stacking.