Current Issue

Articles

One Good Plaintiff Is Not Enough
Aaron-Andrew P. Bruhl
PDF

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one plaintiff has standing to pursue the claims before the court. This practice of partially bypassing the requirement of standing is not limited to cases in which the plaintiffs are about to lose on other grounds anyway. Put differently, courts are willing to proceed as if all plaintiffs have standing as long as one plaintiff has it, and they will then decide the merits for or against all plaintiffs despite doubts about the standing of some of those plaintiffs. We could call this the “one-plaintiff rule.”

This Article examines the one-plaintiff rule from normative and positive perspectives. On the normative side, the goal is to establish that the one-plaintiff rule is erroneous in light of principle, precedent, and policy. All plaintiffs need standing, even if each presents similar legal claims and regardless of the form of relief they seek. To motivate the normative inquiry, the Article also explains that the one-plaintiff rule is harmful as a practical matter because it assigns the benefits and detriments of judgments to persons to whom they do not belong. The Article’s other principal goal is to explain the puzzle of how the mistaken one-plaintiff rule could have attained such widespread acceptance. The explanatory account assigns the blame for the one-plaintiff rule to the incentives of courts and litigants as well as to the development of certain problematic understandings of the nature of judicial power.

Foreign Price-Fixing Conspiracies
Christopher R. Leslie
PDF

Although price-fixing agreements remain per se illegal in the United States, courts have undermined the per se rule against price fixing by making it harder for plaintiffs to prove that such an agreement exists. For example, most courts that have considered the issue have held that defendants’ price-fixing conduct in a foreign market is not probative of price fixing in the United States. This Article examines the relationship between foreign and domestic price-fixing activity and shows how expanding a price-fixing cartel from foreign markets into the United States benefits the cartel by reducing the risk of arbitrage, stabilizing the cartel, and concealing the conspiracy from global antitrust authorities. The Article then takes the insights from the empirical and theoretical cartel literature and applies them to antitrust doctrine in order to demonstrate why defendants’ overseas price-fixing arrangements are relevant to proving the existence of an agreement in litigation claiming that the same defendants fixed prices in the American market. Finally, the Article encourages courts to better understand how international price-fixing cartels operate.

Notes

Creating a More Certain Standard for Enhanced Patent Damages by Requiring Egregiousness as an Element in the Section 284 Analysis
Brian Barnes
PDF

According to 35 U.S.C. § 284, district courts have the power to “increase the damages up to three times the amount found or assessed” by the jury in patent infringement cases where willful infringement occurred. Following the recent Supreme Court decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. , it is now less clear how courts are to go about deciding whether to exercise this power. Halo established that the decision lies within the discretion of the district court judge, but declined to give a more concrete standard than urging the judge to “take into account the particular circumstances of each case” and only increase damages in “egregious cases typified by willful misconduct.” This Note proposes a new standard that is consistent with the Halo framework that will bring more certainty to enhanced damages decisions.

Under this Note’s proposed standard, before an award of enhanced damages can be made, the jury must find that infringement was willful, and the judge must find that the infringement was egregious under the standards established by the Federal Circuit. The egregiousness of the infringement is an explicit element that must be established before enhanced damages can be awarded. After these two elements are satisfied, the judge would have the discretion to award enhanced damages depending on the circumstances of the case. The egregiousness element is a mixed question of fact and law, so factual determinations made by the lower court are subject to clear error review and the overall legal determination of egregiousness is subject to de novo review by the Federal Circuit. This proposed standard would allow the Federal Circuit to reduce the uncertainty left by Halo , making it clear that egregiousness is required for every award of enhanced damages and providing a framework of specific factors district courts should weigh in making that determination.

Algorithms & Fiduciaries: Existing and Proposed Regulatory Approaches to Artificially Intelligent Financial Planners
John Lightbourne
PDF

Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms promise to make advice available 24–7 and significantly reduce costs, thereby opening the market for financial advice to lower-income individuals. However, the use of machine learning algorithms also raises concerns. Among them, whether these machine learning algorithms can meet the existing fiduciary standard imposed on human financial advisers and how responsibility and liability should be partitioned when an autonomous algorithm falls short of the fiduciary standard and harms a client. After summarizing the applicable law regulating investment advisers and the current state of robo-advising, this Note evaluates whether robo-advisers can meet the fiduciary standard and proposes alternate liability schemes for dealing with increasingly sophisticated machine learning algorithms.

Current Issue

Articles

One Good Plaintiff Is Not Enough
Aaron-Andrew P. Bruhl
PDF

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one plaintiff has standing to pursue the claims before the court. This practice of partially bypassing the requirement of standing is not limited to cases in which the plaintiffs are about to lose on other grounds anyway. Put differently, courts are willing to proceed as if all plaintiffs have standing as long as one plaintiff has it, and they will then decide the merits for or against all plaintiffs despite doubts about the standing of some of those plaintiffs. We could call this the “one-plaintiff rule.”

This Article examines the one-plaintiff rule from normative and positive perspectives. On the normative side, the goal is to establish that the one-plaintiff rule is erroneous in light of principle, precedent, and policy. All plaintiffs need standing, even if each presents similar legal claims and regardless of the form of relief they seek. To motivate the normative inquiry, the Article also explains that the one-plaintiff rule is harmful as a practical matter because it assigns the benefits and detriments of judgments to persons to whom they do not belong. The Article’s other principal goal is to explain the puzzle of how the mistaken one-plaintiff rule could have attained such widespread acceptance. The explanatory account assigns the blame for the one-plaintiff rule to the incentives of courts and litigants as well as to the development of certain problematic understandings of the nature of judicial power.

Foreign Price-Fixing Conspiracies
Christopher R. Leslie
PDF

Although price-fixing agreements remain per se illegal in the United States, courts have undermined the per se rule against price fixing by making it harder for plaintiffs to prove that such an agreement exists. For example, most courts that have considered the issue have held that defendants’ price-fixing conduct in a foreign market is not probative of price fixing in the United States. This Article examines the relationship between foreign and domestic price-fixing activity and shows how expanding a price-fixing cartel from foreign markets into the United States benefits the cartel by reducing the risk of arbitrage, stabilizing the cartel, and concealing the conspiracy from global antitrust authorities. The Article then takes the insights from the empirical and theoretical cartel literature and applies them to antitrust doctrine in order to demonstrate why defendants’ overseas price-fixing arrangements are relevant to proving the existence of an agreement in litigation claiming that the same defendants fixed prices in the American market. Finally, the Article encourages courts to better understand how international price-fixing cartels operate.

Notes

Creating a More Certain Standard for Enhanced Patent Damages by Requiring Egregiousness as an Element in the Section 284 Analysis
Brian Barnes
PDF

According to 35 U.S.C. § 284, district courts have the power to “increase the damages up to three times the amount found or assessed” by the jury in patent infringement cases where willful infringement occurred. Following the recent Supreme Court decision in Halo Electronics, Inc. v. Pulse Electronics, Inc. , it is now less clear how courts are to go about deciding whether to exercise this power. Halo established that the decision lies within the discretion of the district court judge, but declined to give a more concrete standard than urging the judge to “take into account the particular circumstances of each case” and only increase damages in “egregious cases typified by willful misconduct.” This Note proposes a new standard that is consistent with the Halo framework that will bring more certainty to enhanced damages decisions.

Under this Note’s proposed standard, before an award of enhanced damages can be made, the jury must find that infringement was willful, and the judge must find that the infringement was egregious under the standards established by the Federal Circuit. The egregiousness of the infringement is an explicit element that must be established before enhanced damages can be awarded. After these two elements are satisfied, the judge would have the discretion to award enhanced damages depending on the circumstances of the case. The egregiousness element is a mixed question of fact and law, so factual determinations made by the lower court are subject to clear error review and the overall legal determination of egregiousness is subject to de novo review by the Federal Circuit. This proposed standard would allow the Federal Circuit to reduce the uncertainty left by Halo , making it clear that egregiousness is required for every award of enhanced damages and providing a framework of specific factors district courts should weigh in making that determination.

Algorithms & Fiduciaries: Existing and Proposed Regulatory Approaches to Artificially Intelligent Financial Planners
John Lightbourne
PDF

Artificial intelligence is no longer solely in the realm of science fiction. Today, basic forms of machine learning algorithms are commonly used by a variety of companies. Also, advanced forms of machine learning are increasingly making their way into the consumer sphere and promise to optimize existing markets. For financial advising, machine learning algorithms promise to make advice available 24–7 and significantly reduce costs, thereby opening the market for financial advice to lower-income individuals. However, the use of machine learning algorithms also raises concerns. Among them, whether these machine learning algorithms can meet the existing fiduciary standard imposed on human financial advisers and how responsibility and liability should be partitioned when an autonomous algorithm falls short of the fiduciary standard and harms a client. After summarizing the applicable law regulating investment advisers and the current state of robo-advising, this Note evaluates whether robo-advisers can meet the fiduciary standard and proposes alternate liability schemes for dealing with increasingly sophisticated machine learning algorithms.