Current Issue

Articles

Statutory Interpretation and the Rest of the Iceberg: Divergences Between the Lower Federal Courts and the Supreme Court
Aaron-Andrew P. Bruhl
PDF

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding—based on a study of 40 years of cases from all three levels of the federal judiciary—is that all federal courts have shifted toward more frequent use of textualist tools in recent decades. However, that shift has been less pronounced as one moves down the judicial hierarchy.

The divergence between the interpretive practices of different federal courts has implications for both descriptive and normative accounts of statutory interpretation. On the descriptive side, most beliefs about statutory interpretation are based on the narrow and unrepresentative slice of judicial business conducted in the Supreme Court, but some of those beliefs turn out to be incorrect or incomplete as descriptions of statutory interpretation more generally. This research therefore substantially improves our understanding of the complex reality of judicial statutory interpretation. On the normative side, the results of this research can advance scholarly and judicial debates over whether lower courts should conduct statutory interpretation differently than the Supreme Court and whether the Court’s interpretive methodology should be binding on lower courts. This Article’s findings also suggest that the teaching of statutory interpretation should take into account the distinctive practices of the lower courts, where the vast majority of legal work is done.

Intelligent Design
Christopher Buccafusco, Mark A. Lemley & Jonathan S. Masur
PDF

When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new, socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime—copyright law, design patent law, or utility patent law—depending upon the type of design. Unfortunately, those screens are no longer working. Designers are able to obtain powerful IP protection over the utilitarian aspects of their creations without demonstrating that they have made socially valuable contributions. They are also able to do so without paying substantial fees that might weed out weaker, socially costly designs. This is bad for competition and bad for consumers.

In this Article, we integrate theories of doctrinal and costly screens and explore their roles in channeling IP rights. We explain the inefficiencies that have arisen through the misapplication of these screens in copyright and design patent laws. Finally, we propose a variety of solutions that would move design protection toward a successful channeling regime, balancing the law’s needs for incentives and competition. These proposals include improving doctrinal screens to weed out functionality, making design protection more costly, and preventing designers from obtaining multiple forms of protection for the same design.

Notes

Fixing Soft Dollars Is Not That Hard: A Consent and Reporting Framework for Regulating Client Commission Arrangements
Brendan Biffany
PDF

Under soft dollar arrangements, investment advisers promise portfolio trades to participating brokers in exchange for investment research or other benefits. Recently, some academics, financial regulators, and practitioners have scrutinized such arrangements, arguing that they provide an avenue for advisers to unjustly enrich themselves at the expense of their clients. However, others defend soft dollar arrangements, seeing them as a mechanism for binding advisers to clients and increasing client returns.

A safe harbor currently protects advisers’ use of soft dollars, so long as certain minimum requirements are met. Critics argue that soft dollars should be banned outright, contending that advisers should be required to pay for all investment research and advisory benefits out of their own pocket rather than by using clients’ commissions. Supporters recommend maintaining the status quo, arguing that the safe harbor promotes access to diverse research that, ultimately, benefits clients.

This Note analyzes the benefits and drawbacks of soft dollar arrangements, the original rationales for the development of the soft dollar safe harbor, and the agency costs and conflicts of interest inherent in maintaining the safe harbor. This Note advocates a middle ground between maintaining the status quo and banning soft dollars outright: a consent and reporting framework for the use of soft dollars that is consistent with general principles of agency and the fiduciary duties that advisers owe their clients.

Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations
Luke Morgan
PDF

Armed protest has long been a tool of American political groups. Neo-Nazis, socialists, fascists, antifascists, the Black Panthers, neo-Confederates, and others have all taken up arms not necessarily to do violence, but to do politics. But such protests always risk rending a violent hole in our social fabric. If war is politics by other means, armed protests erase the distinction.

This Note argues that the Constitution’s relevant guarantees of individual rights—the First and Second Amendments—do not include a constitutional right to armed protest.

With respect to free speech, it is unlikely that current doctrine would cover armed protests. But, considering ongoing First Amendment expansion, this Note argues for a categorical exclusion of guns, and perhaps other express constitutional guarantees, from expressive conduct doctrine.

As for the Second Amendment, armed protest is not within the historically understood scope of the right to keep and bear arms. More importantly, though, Heller’s “sensitive places” exception recognizes a fundamental reality about the relationship between the First and Second Amendments: the Second Amendment must cede certain arenas—churches, government buildings, schools, theaters, protests, and the like—to the First. Instruments of violence cannot be permitted to distort outcomes in the marketplace of ideas.

Current Issue

Articles

Statutory Interpretation and the Rest of the Iceberg: Divergences Between the Lower Federal Courts and the Supreme Court
Aaron-Andrew P. Bruhl
PDF

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding—based on a study of 40 years of cases from all three levels of the federal judiciary—is that all federal courts have shifted toward more frequent use of textualist tools in recent decades. However, that shift has been less pronounced as one moves down the judicial hierarchy.

The divergence between the interpretive practices of different federal courts has implications for both descriptive and normative accounts of statutory interpretation. On the descriptive side, most beliefs about statutory interpretation are based on the narrow and unrepresentative slice of judicial business conducted in the Supreme Court, but some of those beliefs turn out to be incorrect or incomplete as descriptions of statutory interpretation more generally. This research therefore substantially improves our understanding of the complex reality of judicial statutory interpretation. On the normative side, the results of this research can advance scholarly and judicial debates over whether lower courts should conduct statutory interpretation differently than the Supreme Court and whether the Court’s interpretive methodology should be binding on lower courts. This Article’s findings also suggest that the teaching of statutory interpretation should take into account the distinctive practices of the lower courts, where the vast majority of legal work is done.

Intelligent Design
Christopher Buccafusco, Mark A. Lemley & Jonathan S. Masur
PDF

When designers obtain exclusive intellectual property (IP) rights in the functional aspects of their creations, they can wield these rights to increase both the costs to their competitors and the prices that consumers must pay for their goods. IP rights and the costs they entail are justified when they create incentives for designers to invest in new, socially valuable designs. But the law must be wary of allowing rights to be misused. Accordingly, IP law has employed a series of doctrinal and costly screens to channel designs into the appropriate regime—copyright law, design patent law, or utility patent law—depending upon the type of design. Unfortunately, those screens are no longer working. Designers are able to obtain powerful IP protection over the utilitarian aspects of their creations without demonstrating that they have made socially valuable contributions. They are also able to do so without paying substantial fees that might weed out weaker, socially costly designs. This is bad for competition and bad for consumers.

In this Article, we integrate theories of doctrinal and costly screens and explore their roles in channeling IP rights. We explain the inefficiencies that have arisen through the misapplication of these screens in copyright and design patent laws. Finally, we propose a variety of solutions that would move design protection toward a successful channeling regime, balancing the law’s needs for incentives and competition. These proposals include improving doctrinal screens to weed out functionality, making design protection more costly, and preventing designers from obtaining multiple forms of protection for the same design.

Notes

Fixing Soft Dollars Is Not That Hard: A Consent and Reporting Framework for Regulating Client Commission Arrangements
Brendan Biffany
PDF

Under soft dollar arrangements, investment advisers promise portfolio trades to participating brokers in exchange for investment research or other benefits. Recently, some academics, financial regulators, and practitioners have scrutinized such arrangements, arguing that they provide an avenue for advisers to unjustly enrich themselves at the expense of their clients. However, others defend soft dollar arrangements, seeing them as a mechanism for binding advisers to clients and increasing client returns.

A safe harbor currently protects advisers’ use of soft dollars, so long as certain minimum requirements are met. Critics argue that soft dollars should be banned outright, contending that advisers should be required to pay for all investment research and advisory benefits out of their own pocket rather than by using clients’ commissions. Supporters recommend maintaining the status quo, arguing that the safe harbor promotes access to diverse research that, ultimately, benefits clients.

This Note analyzes the benefits and drawbacks of soft dollar arrangements, the original rationales for the development of the soft dollar safe harbor, and the agency costs and conflicts of interest inherent in maintaining the safe harbor. This Note advocates a middle ground between maintaining the status quo and banning soft dollars outright: a consent and reporting framework for the use of soft dollars that is consistent with general principles of agency and the fiduciary duties that advisers owe their clients.

Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations
Luke Morgan
PDF

Armed protest has long been a tool of American political groups. Neo-Nazis, socialists, fascists, antifascists, the Black Panthers, neo-Confederates, and others have all taken up arms not necessarily to do violence, but to do politics. But such protests always risk rending a violent hole in our social fabric. If war is politics by other means, armed protests erase the distinction.

This Note argues that the Constitution’s relevant guarantees of individual rights—the First and Second Amendments—do not include a constitutional right to armed protest.

With respect to free speech, it is unlikely that current doctrine would cover armed protests. But, considering ongoing First Amendment expansion, this Note argues for a categorical exclusion of guns, and perhaps other express constitutional guarantees, from expressive conduct doctrine.

As for the Second Amendment, armed protest is not within the historically understood scope of the right to keep and bear arms. More importantly, though, Heller’s “sensitive places” exception recognizes a fundamental reality about the relationship between the First and Second Amendments: the Second Amendment must cede certain arenas—churches, government buildings, schools, theaters, protests, and the like—to the First. Instruments of violence cannot be permitted to distort outcomes in the marketplace of ideas.