Lewis & Clark Law Review - Law School - Lewis & Clark

 

ARTICLES

 

SACRIFICING MASSIAH: CONFUSION OVER EXCLUSION AND EROSION OF THE RIGHT TO COUNSEL

James J. Tomkovicz

16 Lewis & Clark L. Rev. 1 (2012)

In this Article, Professor Tomkovicz examines the Sixth Amendment right-to-counsel-based “exclusionary rule” first announced in 1964, in Massiah v. United States. The impetus for this examination is the Supreme Court’s 2009 ruling in Kansas v. Ventris—more specifically, that decision’s dubious and disingenuous explanation of the constitutional rationale for Massiah’s exclusion doctrine. The Article describes the original vision of suppression that seemed to animate the ruling in Massiah. It then traces the cryptic development of the Sixth Amendment exclusion doctrine through nearly a half-century of post-Massiah opinions. Next, Professor Tomkovicz focuses his attention on Ventris—the first definitive exploration of the justification for barring admissions deliberately elicited from uncounseled defendants. The Ventris majority classified Massiah suppression as a mere deterrent safeguard designed to prevent pretrial counsel deprivations. The Court rejected the view that exclusion is a right—that is, that an accused has a personal entitlement not to be convicted based on uncounseled admissions elicited by government agents. The Court’s understanding of Massiah exclusion runs contrary to the original conception. More important, it is utterly irreconcilable with the nature of the guarantee of pretrial legal assistance that is Massiah’s foundation. It ignores the core reasons for the pretrial extension of the right to trial assistance—to preserve a fair adversarial process and to guard the accused against negative courtroom consequences of imbalanced pretrial clashes. Ventris rests on the indefensible premises that pretrial assistance exists for its own sake, that constitutional harm is inflicted only before trial, and that damage to an accused’s chances for acquittal at trial is not the constitutional concern. This Article proffers reasons why the Justices might have arrived at this hopelessly misguided conception. Those reasons include uncritical, monolithic thinking about “exclusionary rules,” palpable, abiding hostility toward constitutional suppression doctrines that defeat the search for truth, and dissatisfaction with Massiah’s extension of the right to counsel’s assistance. Finally, the Article discusses the pragmatic consequences of Ventris’s impoverished vision, concluding that constraints imposed on Fourth Amendment exclusion—another purely deterrent bar to evidence—will surely be imposed on Sixth Amendment suppression. As a result, the right-to-counsel “exclusionary rule” will be constrained in ways that would be impossible if the Justices acknowledged the true “constitutional right” character of Massiah’s evidentiary bar. According to Professor Tomkovicz, Ventris’s legacy—an array of restrictions on the reach of the Sixth Amendment “exclusionary rule”—will pose a genuine threat to the vitality of the fundamental right to the assistance of counsel.

POSNER’S PRAGMATISM AND THE TURN TOWARD FIDELITY

Edward Cantu

16 Lewis & Clark L. Rev. 69 (2012)

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.), judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. This Article discusses the current state of legal pragmatism, with a focus on the archetypal species espoused by Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful to modern adjudication. Through a dissection of the essentials of Posner’s pragmatism, the Article demonstrates that pragmatism serves only as a method of justifying outcomes that comport with the personal temperament and intuitions of those applying it. The Article then explores how the increasing obviousness of pragmatism’s failings has renewed interest in a concept central to formalist approaches: “fidelity” to exalted principles of political theory. Thus, the Article concludes that a primary legacy of pragmatism will be its contribution to the advent of “soft formalism,” characterized by an insistence that indeterminacy and subjectivity in law does not excuse the abandonment of fidelity as a central hallmark of legitimate adjudication.

COCOS CAN DRIVE MARKETS CUCKOO

Hilary J. Allen

16 Lewis & Clark L. Rev. 125 (2012)

Bank-issued contingent-convertible capital instruments (known colloquially as “cocos”) are assumed to be a less costly substitute for common equity that will improve the stability of banks in a crisis situation. However, cocos are new and untested instruments. In a future financial crisis they are likely to incentivize behaviors and trading strategies (notably panic selling, short selling, and the use of credit default swaps) that have the potential to harm confidence in banks. Without confidence, banks will have difficulty funding themselves and the likely consequences of bank difficulties (credit crunches and possible bailouts) will be felt by society at large. This should make regulators exceedingly wary of endorsing the use of cocos. Indeed, many of the supposed benefits of using cocos instead of ordinary common equity for regulatory capital purposes appear to be illusory: to best preserve systemic stability, regulatory capital requirements should therefore be satisfied with common equity rather than cocos..

VISUAL INVENTION

Sarah Burstein

16 Lewis & Clark L. Rev. 169 (2012)

Recently, there has been a renewed interest in design patents and, in particular, in the issue of nonobviousness. Courts and commentators have long struggled with how the nonobviousness requirement should be applied to designs. This Article argues that the Federal Circuit’s current test for design patent nonobviousness is flawed and proposes several changes to that test. The approach proposed here will provide much-needed clarity in an unusually murky area of law and will also better promote the relevant policy goals.

COPYRIGHT INJUNCTIONS AFTER EBAY: AN EMPIRICAL STUDY

Jiarui Liu

16 Lewis & Clark L. Rev. 215 (2012)

An interesting yet less explored aspect of the eBay decision, in which the Supreme Court upheld the four-factor test under traditional principles of equity in the patent injunction context, is that the decision referred to what it characterized as long-term practice in copyright law to support the equitable power of lower courts to deny permanent injunctions. This ruling was made against the backdrop of widespread patent holdup where patent owners used the threat of injunctive relief to extract royalties grossly disproportionate to the value of the patented feature to the whole product. The holdup problem, however, is not equally obvious in copyright law.

A close examination of the copyright cases cited in eBay reveals that they are hardly compelling authorities with respect to copyright injunction. The history of copyright law appears to suggest that injunctive relief was routinely available to copyright owners who had succeeded on the merits. More remarkably, empirical evidence shows that the majority of post-eBay decisions on copyright injunctions have totally ignored the eBay decision as well as the four-factor test advocated therein. Even among the cases that did cite eBay, most courts were reluctant to withhold injunctive relief upon a finding of copyright infringement.

This Article argues that the traditional practice of copyright law and the apparent indifference toward the eBay decision may have resulted from rational choices of judges. Copyright holdup is much less pervasive than patent holdup, as interchangeable copyrighted works abound in the marketplace, and copyright law contains built-in mechanisms to control the holdup problem. Copyright injunctions also involve a distinct set of policy concerns, such as reputational harm, fair use, statutory damages, and freedom of speech. Hence, this Article proposes several approaches to reconcile the unique concerns in copyright law and the four-factor test mandated by eBay, with a focus on three scenarios that are particularly susceptible to the holdup problem.

A PATENT MISPERCEPTION

Elizabeth I. Winston

16 Lewis & Clark L. Rev. 289 (2012)

Antitrust and intellectual property laws promote innovation and competition. As long as the costs of promotion do not exceed the benefit to society, then the laws act in harmony. Discord arises when patent holders use public and private ordering to restrain competition, restrict downstream trade, prevent the development of competing products, and limit output by competitors. Using the Patent Act and the misperception of antitrust immunity to create a parallel and under-regulated legal system allows a small number of patent holders to coordinate their behavior to maximize profits and minimize competition. The Patent Act provides no shield to prosecution for antitrust violations—such is a patent misperception only. Harmony comes from balancing the costs of protection with the benefit to society. Innovation is best protected through the protection of intellectual property rights and the protection of competition.

 

ESSAY

 

THE PARADOXICAL EVOLUTION OF LAW

Liaquat Ali Khan

16 Lewis & Clark L. Rev. 337 (2012)

This Essay presents law’s evolution as a paradoxical union of the finite and the infinite. At any given point in time, law is a finite body of norms, which can be identified. At the same time, law’s evolution is infinite because rule-mutations that alter those norms are indeterminable. In modern legal systems, law’s evolution occurs under the constraining influence of master texts, which provide normative durability by enshrining the fundamental norms of a legal system and fortifying them against change. Despite this stabilizing role, however, master texts are themselves open to mutations. Therefore, law’s evolution under the constraints of a master text mediates the paradoxical union of law’s finite and infinite nature.

 

NOTES & COMMENTS

 

STAUB V. PROCTOR HOSPITAL:
A TENUOUS STEP IN THE RIGHT DIRECTION

Benjamin Pepper

16 Lewis & Clark L. Rev. 363 (2012)

“Cat’s paw liability” is a phrase coined by Judge Richard Posner in 1990 to describe the doctrine governing scenarios where an intermediary actor, other than the actual decision-maker, is accused of harboring unlawful discriminatory animus that may have caused or influenced an adverse employment action. In recent years, as the structure of the modern workplace continues to distance decision-makers from the people and conditions “on the ground,” the doctrine’s importance has escalated along with the prevalence of litigation in which it is invoked. Prior to the Supreme Court’s decision in Staub v. Proctor Hospital on March 1, 2011, the contours of this doctrine had been fashioned by the federal circuit courts over the course of more than two decades, resulting in highly disparate standards in cat’s paw cases and widespread uncertainty among employers, employees, and their legal representatives. Given that the Court lost an opportunity to address the doctrine in 2007, when EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles was dismissed pursuant to Rule 46.2 prior to oral argument, Staub represents a long-awaited attempt to introduce uniformity to a doctrine desperately in need of it. This Comment reviews the issues and developments that have made cat’s paw liability such an important yet contentious and inconsistent legal doctrine. It contends that while the Court took a substantial step in the right direction in Staub, foreclosing some circuits’ strict approaches that had effectively barred employees from availing themselves of the doctrine’s protections, Justice Scalia’s somewhat cursory opinion leaves several crucial issues unresolved. Accordingly, absent further clarification from the Supreme Court, development of key aspects of the doctrine will revert to the same circuits that have thus far failed to provide employers and employees with the clarity and uniformity needed given today’s complex workplace environments.

REARGUING JURY UNANIMITY: AN ALTERNATIVE

Chenyu Wang

16 Lewis & Clark L. Rev. 389 (2012)

Since 1972, the Supreme Court has not required states to determine the outcome of criminal trials by unanimous jury verdicts, as it has with the federal government. Even though the Court itself has criticized this rule, no challenge to the rule has been successful. With three recent rejections to challenges to the rule in an equal number of Terms, the Supreme Court has not yet shown a willingness to reconsider. This Comment analyzes the history of the rule and then considers a new approach in convincing the Court to change course: an Eighth Amendment proportionality challenge based on the procedures used. Such a new approach could arise from first considering Florida’s practice of allowing just a simple majority of jurors to recommend the death penalty. In turn, Florida’s practice could open the door to an Eighth Amendment proportionality challenge based on the procedure used. Because the Court consistently favors challenges based on procedure (and disfavors those based on accuracy), such an approach may be successful.