Current Issue

Articles

Free Speech and the Law of Evidence
Dan T. Coenen
PDF

To what extent does the First Amendment limit the ability of prosecutors to offer evidence of a defendant’s past protected speech? As it turns out, the Supreme Court has touched on this question in only a handful of rulings, each of which was crafted to target only the distinctive facts of the case at hand. Many lower courts, however, have distilled from these decisions a sweeping, admissibility-favoring constitutional rule. According to that rule, the First Amendment imposes no limit on prosecutorial use of past-speech evidence—no matter how prejudicial—so long as it meets the minimum standard of evidentiary relevance. This approach is misguided. To begin with, it has no support in the Court’s past decisions, which in fact favor, rather than disfavor, a meaningful judicial role in evaluating the use of past-speech evidence. Even more important, a hands-off stance clashes with long-honored free-speech-supporting constitutional policies. As a result, this Article calls for judicial recognition of a new set of First Amendment protections that operate whenever challenged past-speech evidence involves expression on a matter of public concern. This build-out of existing doctrine comports with the Court’s specialized protection of public-concern speech in a wide variety of settings. It also gains momentum from the Court’s jurisprudence regarding constitutional review of generally applicable laws—in this case, the generally applicable law of evidence. On close examination, the operative doctrines in this field—as well as the policy considerations that underlie those doctrines—provide strong support for an approach that imposes both procedural and substantive constraints on the use of public-concern speech to secure criminal convictions. Such an approach is offered here.

Corporate Disobedience
Elizabeth Pollman
PDF

Corporate law has long taken a dim view of corporate lawbreaking. Corporations can be chartered only for lawful activity. Contemporary case law characterizes the intentional violation of law as a breach of the fiduciary duties of good faith and loyalty. While recognizing that rule breaking raises significant social and moral concerns, this Article demonstrates that corporate law and academic debate have overlooked important aspects of corporate disobedience.

This Article provides an overview of corporate disobedience and illuminates the role that it has played in entrepreneurship and legal change. Corporations violate laws in a variety of contexts, including as part of efforts at innovation, in battles of federalism, in taking stances against moralistic laws, in asserting claims for rights, and as part of general business lobbying to shape the law. To the extent that innovation or legal change can benefit society, some of this activity has the potential to provide social value.

This central insight and argument leads to additional contributions to corporate law and legal theory. First, examining the full spectrum of corporate disobedience reveals that corporate law’s requirement of lawful conduct embeds particular social values into the corporate code. It conveys the principle that corporations should pursue legal change through established and lawful democratic processes. Second, this examination shows that fiduciary duty law is ultimately not an effective or fine-tuned mechanism for policing corporate disobedience. Third, the Article highlights several features of corporate disobedience that might bear on its normative assessment.

Notes

The Promising Viral Threat to Bacterial Resistance: The Uncertain Patentability of Phage Therapeutics and the Necessity of Alternative Incentives
Kelly Todd
PDF

Bacteriophages, or “phages,” are a category of highly adept and adaptable viruses that can infect and kill bacteria. With concerns over the burgeoning antibiotic-resistance crisis looming in recent years, scientists and policymakers have expressed a growing interest in developing novel treatments for bacterial infections that utilize bacteriophages. Because of the great expense associated with bringing a new drug to market, patents are usually considered the gold standard for incentivizing research and development in the pharmaceutical field. Absent such strong protection for a developer’s front end investment, pharmaceutical development remains financially risky and unattractive. Unfortunately, recent Supreme Court jurisprudence analyzing patentable subject matter under 35 U.S.C. § 101 has cast doubt on whether phage therapeutics would be eligible for strong patent protection. In order for the promise of phage therapeutics to become a reality, alternative protections or incentives are likely necessary. Such a framework would likely include trade secrecy, regulatory exclusivities, research support, alternative payment models, or some combination thereof.

The Ghost in the Courtroom: When Opinions Are Adopted Verbatim from Prosecutors
Natasha-Eileen Ulate
PDF

Judicial opinions captivate the legal community, serving as a hub for teaching new lawyers and developing the law. These opinions also provide a method for the justice system to communicate with the people it serves—both the parties to the cases and the public. This communication should be well-reasoned and developed from a neutral standpoint. However, this ideal is being seriously threatened by ghostwriting, the practice of allowing a party to write the opinion. This is particularly troubling in criminal cases, where the very lawyers charged with prosecuting defendants are writing the opinions against them.

This Note proposes that opinions written by prosecutors should be subject to de novo appellate review. Additionally, states should pass legislation and revise ethics rules to require that judges critically review a proposed opinion, refrain from adopting it verbatim, give the opposing party an opportunity to reply, and write an original legal analysis section.

Change is necessary to ensure that opinions are not just a recitation of a prosecutor’s argument, but a thoughtful product of an impartial judge. Left unchecked, ghostwriting will destroy the value of opinions and undermine the integrity of adjudication.

Current Issue

Articles

Free Speech and the Law of Evidence
Dan T. Coenen
PDF

To what extent does the First Amendment limit the ability of prosecutors to offer evidence of a defendant’s past protected speech? As it turns out, the Supreme Court has touched on this question in only a handful of rulings, each of which was crafted to target only the distinctive facts of the case at hand. Many lower courts, however, have distilled from these decisions a sweeping, admissibility-favoring constitutional rule. According to that rule, the First Amendment imposes no limit on prosecutorial use of past-speech evidence—no matter how prejudicial—so long as it meets the minimum standard of evidentiary relevance. This approach is misguided. To begin with, it has no support in the Court’s past decisions, which in fact favor, rather than disfavor, a meaningful judicial role in evaluating the use of past-speech evidence. Even more important, a hands-off stance clashes with long-honored free-speech-supporting constitutional policies. As a result, this Article calls for judicial recognition of a new set of First Amendment protections that operate whenever challenged past-speech evidence involves expression on a matter of public concern. This build-out of existing doctrine comports with the Court’s specialized protection of public-concern speech in a wide variety of settings. It also gains momentum from the Court’s jurisprudence regarding constitutional review of generally applicable laws—in this case, the generally applicable law of evidence. On close examination, the operative doctrines in this field—as well as the policy considerations that underlie those doctrines—provide strong support for an approach that imposes both procedural and substantive constraints on the use of public-concern speech to secure criminal convictions. Such an approach is offered here.

Corporate Disobedience
Elizabeth Pollman
PDF

Corporate law has long taken a dim view of corporate lawbreaking. Corporations can be chartered only for lawful activity. Contemporary case law characterizes the intentional violation of law as a breach of the fiduciary duties of good faith and loyalty. While recognizing that rule breaking raises significant social and moral concerns, this Article demonstrates that corporate law and academic debate have overlooked important aspects of corporate disobedience.

This Article provides an overview of corporate disobedience and illuminates the role that it has played in entrepreneurship and legal change. Corporations violate laws in a variety of contexts, including as part of efforts at innovation, in battles of federalism, in taking stances against moralistic laws, in asserting claims for rights, and as part of general business lobbying to shape the law. To the extent that innovation or legal change can benefit society, some of this activity has the potential to provide social value.

This central insight and argument leads to additional contributions to corporate law and legal theory. First, examining the full spectrum of corporate disobedience reveals that corporate law’s requirement of lawful conduct embeds particular social values into the corporate code. It conveys the principle that corporations should pursue legal change through established and lawful democratic processes. Second, this examination shows that fiduciary duty law is ultimately not an effective or fine-tuned mechanism for policing corporate disobedience. Third, the Article highlights several features of corporate disobedience that might bear on its normative assessment.

Notes

The Promising Viral Threat to Bacterial Resistance: The Uncertain Patentability of Phage Therapeutics and the Necessity of Alternative Incentives
Kelly Todd
PDF

Bacteriophages, or “phages,” are a category of highly adept and adaptable viruses that can infect and kill bacteria. With concerns over the burgeoning antibiotic-resistance crisis looming in recent years, scientists and policymakers have expressed a growing interest in developing novel treatments for bacterial infections that utilize bacteriophages. Because of the great expense associated with bringing a new drug to market, patents are usually considered the gold standard for incentivizing research and development in the pharmaceutical field. Absent such strong protection for a developer’s front end investment, pharmaceutical development remains financially risky and unattractive. Unfortunately, recent Supreme Court jurisprudence analyzing patentable subject matter under 35 U.S.C. § 101 has cast doubt on whether phage therapeutics would be eligible for strong patent protection. In order for the promise of phage therapeutics to become a reality, alternative protections or incentives are likely necessary. Such a framework would likely include trade secrecy, regulatory exclusivities, research support, alternative payment models, or some combination thereof.

The Ghost in the Courtroom: When Opinions Are Adopted Verbatim from Prosecutors
Natasha-Eileen Ulate
PDF

Judicial opinions captivate the legal community, serving as a hub for teaching new lawyers and developing the law. These opinions also provide a method for the justice system to communicate with the people it serves—both the parties to the cases and the public. This communication should be well-reasoned and developed from a neutral standpoint. However, this ideal is being seriously threatened by ghostwriting, the practice of allowing a party to write the opinion. This is particularly troubling in criminal cases, where the very lawyers charged with prosecuting defendants are writing the opinions against them.

This Note proposes that opinions written by prosecutors should be subject to de novo appellate review. Additionally, states should pass legislation and revise ethics rules to require that judges critically review a proposed opinion, refrain from adopting it verbatim, give the opposing party an opportunity to reply, and write an original legal analysis section.

Change is necessary to ensure that opinions are not just a recitation of a prosecutor’s argument, but a thoughtful product of an impartial judge. Left unchecked, ghostwriting will destroy the value of opinions and undermine the integrity of adjudication.