Paul M. Collins, Jr. is Assistant Professor of Political Science at the University of North Texas. He is author of Friends of the Supreme Court: Interest Groups and Judicial Decision Making. In this article, Collins discusses interest group participation in the recently decided U.S. Supreme Court case District of Columbia v. Heller and the future of Second Amendment litigation.

It is fair to say that one or two cases decided by the U.S. Supreme Court stand out each term. I think it is evident that this term’s most salient case is District of Columbia v. Heller. In that 5-4 decision, the Court struck down the District of Columbia’s ban on the possession of privately owned handguns within District limits. In so doing, the Court clarified the meaning of the Second Amendment for the first time in almost 70 years by endorsing an individual right to keep and bear arms.

Aside from its significance in partially resolving the meaning of the Second Amendment, this case is notable as a means to illustrate the role of interest groups in the courts. Like many seminal constitutional decisions, such as Brown v. Board of Education and Roe v. Wade, the Heller decision originated as a test case. Test cases operate as a type of quid-pro-quo. An interest group uses the case in an attempt to etch its policy preferences into law. In exchange, the group finances the case for the litigant named in the suit by providing that litigant with attorneys, performing legal research, and paying court fees. Robert Levy of the Cato Institute, a libertarian think tank, began the case in an attempt to get the Supreme Court to clarify the meaning of the Second Amendment. Dick Heller was handpicked by Levy as an ideal litigant: Heller was a security guard who carried a gun at work, but could not possess his handgun at home as a means of self defense. The idea was that Heller, as a law abiding citizen with a connection to the law enforcement community, would be a sympathetic figure in the eyes of the courts. Evidently, this was a good choice as the Court ruled in favor of Heller in nullifying the District of Columbia’s ban on the private possession of handguns.

In addition to providing an excellent example of a test case, the Heller decision is also significant for understanding the primary method of interest group litigation: the amicus curiae (“friend of the court”) brief. These briefs provide a means for organized interests to furnish the courts with legal argumentation in an attempt to persuade the justices to accept their interpretations of the law. A total of 67 amicus briefs were filed from a wide variety of interests, ranging from academics to civil rights and liberties organizations to gun advocacy groups. These amici illustrated the reality that the Supreme Court is a public policy battleground in which organized interests clash in their attempts to manipulate the law to further their own agendas. The interest groups highlighted to the justices the broad policy significance of the case, discussing a wide assortment of issues, including matters of children’s safety, racial discrimination, and federalism, in addition to their primary focus on the Second Amendment. While most of the amicus briefs focused on the legal and historical interpretation of the right to keep and bear arms, several amicus briefs provided the Court with social scientific evidence, reading more like statistical analyses than standard legal briefs.

47 amicus briefs were filed supporting Heller, representing a wide assortment of organizations, including the Congress of Racial Equality, Disabled Veterans for Self Defense, the Foundation for Free Expression, and the National Rifle Association. 20 amicus briefs supported the District of Columbia’s ban on handguns, including the American Academy of Pediatrics, the American Bar Association, the NAACP Legal Defense and Education Fund, and National Network to End Domestic Violence. These amicus briefs appeared to influence the justices’ decision making. Indeed, the Court’s majority and dissenting opinions cited more than 15 separate amicus briefs and Justice Breyer was particularly attentive to the arguments raised by the amici. Although the number of amicus briefs supporting a particular litigant is not necessarily determinative of the outcome of cases, the Court nonetheless tends to side with the litigant supported by the largest number of briefs, consistent with the Heller decision.

A particularly important point is what the Supreme Court did not do in the case. That is, the Court did not address the issue of incorporation: whether the Second Amendment applies to the states. While the Bill of Rights was originally intended to protect individuals from the actions of the federal government, over time the Supreme Court has extended most, but not all, provisions in the Bill of Rights to the states. However, in Heller, the court did not extend the Second Amendment to the states. What this means in practice is that we will see a surge of Second Amendment cases percolate throughout the federal court system for decades to come. To be sure, most of these cases will be brought by interest groups seeking to both incorporate the Second Amendment and have the courts clarify exactly what restrictions on the right to keep and bear arms are permissible under the Constitution. Thus, Heller should be viewed as a starting point for the contemporary understanding of the Second Amendment, rather than the final word on the subject.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.  In this article, Zelinsky argues that Senators Obama and McCain have confirmed the malfunction of campaign finance reform, that this is a healthy development for American democracy, and that the current system of campaign finance reform should be replaced by a simplified disclosure regime.

The most important event of the 2008 presidential campaign may already have occurred: The major party nominees have publicly confirmed the malfunction of campaign finance reform. Such reform has imposed increasingly complex and stringent limitations on the contributions of political donors and on the expenditures of political campaigns.

Senator Obama had been an outspoken apostle of campaign finance reform. At the outset of his presidential effort, Senator Obama had proclaimed his commitment to accept public financing and its accompanying expenditure restrictions for his general election campaign. He has now turned 180 degrees. Senator Obama will now eschew public financing and its attendant limits and will instead fund his general election effort with private donations to escape those limits.

Senator McCain’s change of heart is more complex but even more dramatic. Senator McCain was the prime Republican sponsor of the most recent tightening of federal restrictions on campaigns and donors, the eponymous McCain-Feingold Act. While he will accept public financing in the fall, Senator McCain’s supporters are actively and openly exploiting every legal loophole they can find to permit private contributors to assist his candidacy beyond the restrictions imposed by that Act. The irony is palpable. Senator McCain’s supporters are now assiduously seeking to erode the very constraints on donors and campaigns which Senator McCain had championed.

It is easy to criticize Senators Obama and McCain for their inconsistency. I suggest, however, that there is a broader significance to these events. Senators Obama and McCain have confirmed the malfunction of campaign finance reform. We should now kill this complex and unfair regulatory scheme. American democracy will be healthier without the myriad restrictions which limit Americans’ ability to contribute to the candidates of their choice.

The fundamental premises upon which campaign finance reform rests are false: Money in politics is a bad thing which can and ought to be limited legislatively. On the contrary, for many Americans, a financial contribution is today the only meaningful way, besides voting, they can assist the candidates they support. In any event, campaign contributions cannot be controlled fairly and effectively. Another form of Prohibition has failed.

Consider the simpler era in which I grew up. Working on political campaigns along with other volunteers, my friends and I would meet at local party headquarters and fan out to distribute bumper stickers and campaign buttons to our neighbors. It seems quaint because, in retrospect, it was.

Contrast this low budget, Ozzie-and-Harriet world with the consultant-driven, TV-saturated campaigns which constituted primary season 2008. In these campaigns, the citizen-volunteers have largely been subordinated to the full-time, paid, professional operatives who ran these campaigns. In this environment, a financial contribution is, besides voting, the most meaningful form of support many, probably most, Americans can make to the candidate they support.

Moreover, the attempt to limit the influence of money by law, propounded as a means of leveling the political playing field, has instead reinforced the political power of the celebrities in our celebrity-based culture. During the 2008 primary campaign, both Oprah Winfrey and Chuck Norris provided enormously valuable assistance to the Obama and Huckabee campaigns, generating publicity worth hundreds of thousands (if not millions) of dollars for the candidates they supported. None of this celebrity assistance is capped by McCain-Feingold, despite the obvious value of that assistance.

In contrast, if a non-celebrity citizen favoring a competing candidate sought to counteract celebrity-generated publicity by donating equivalent funds to purchase offsetting advertising, that citizen would have violated the law. If, for example, a supporter of Governor Romney sought to counteract Mr. Norris’s efforts via a campaign donation of $2,500 (a tiny fraction of Mr. Norris’s effective but unregulated contribution to Governor Huckabee), that Romney supporter broke the law which limited him to a $2,300 contribution. Campaign finance reform, it turns out, is just for the little people.

It is unsurprising that this system is now in disarray. The current system, with its complex contribution limits, is overly-complicated and unfair. These complex and inequitable rules should be replaced by a simplified regime which permits all campaign contributions without limit but which requires contributions to be immediately and accurately disclosed.

Whether one believes that campaign finance reform like McCain-Feingold was a noble idea which failed or was an unwise approach from the beginning, Senators Obama and McCain have confirmed the malfunction of that approach. We should now move from the currently dysfunctional system to a simplified regime which permits contributions without limit, which requires complete and accurate disclosure of those contributions, and which no longer puts our political life in the hands of Oprah and Chuck.

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David Michaels is a scientist and former government regulator. During the Clinton Administration, he served as Assistant Secretary of Energy for Environment, Safety and Health, responsible for protecting the health and safety of the workers, neighboring communities, and the environment surrounding the nation’s nuclear weapons factories. He currently directs the Project on Scientific Knowledge and Public Policy at The George Washington University School of Public Health and Health Services. His most recent book, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health explains how many of the scientists who spun science for tobacco have become practitioners in the lucrative world of product defense. Whatever the story- global warming, toxic chemicals, sugar and obesity, secondhand smoke- these scientists generate studies designed to make dangerous exposures appear harmless. Earlier today we excerpted from the introduction to the book, the excerpt below is from Michaels recommendations to reform the courts’ role in our public health system.

Courts are a repository of large amounts of information that is potentially important in public health protection. Every chapter of this book contains material that was uncovered during the discovery process in a legal proceeding: documents that prove industry campaigns to manufacture uncertainty; others that prove corporate knowledge of significant health hazards years, if not decades, before they were acknowledged; and vital scientific studies that should have been in the literature but were hidden by their corporate sponsors. It is almost always in the public’s interest to place these documents in the public domain, but defendants, who want to avoid bad publicity and the encouragement of additional lawsuits, are often willing to offer the plaintiff a more generous settlement in return for secrecy. Seduced by the larger settlements, plaintiffs and their attorneys have little incentive to oppose the practice, and judges benefit by clearing their dockets of complex, time-consuming litigation. So the deal is done, and the documents are sealed from public view, sequestered forever. The loser is society. Secrecy diminishes our ability to both identify public health and safety hazards and prevent further harm.

Protective orders and secrecy agreements have hidden critical evidence of hazards associated with dozens of materials, products, and processes: automobiles, medicines, child car seats, BB guns, toys, cigarette lighters, school lunch tables, water slides, and many more. No price is paid by the parties involved to the contrary, it is a win-win deal for them—while the public and regulators are left in the dark. Secrecy agreements are a nefarious practice, and the courts have the means of limiting if not eradicating them. Some do so. The judges of the U.S. District Court for the District of South Carolina have issued rules ‘‘disfavoring court-ordered secrecy in cases affecting public safety,’’ but they appear to be in the minority on the federal bench. Judges in toxic tort cases may consider this issue in approving secrecy agreements, but such consideration does not carry the day often enough.

How could the courts put some teeth into rules to discourage the sealing of important documents? Dan Givelber, former dean of the Northeastern University School of Law, and Tony Robbins, former head of NIOSH, the U.S. National Vaccine Program, and two state health departments, have coauthored an intriguing proposal. They suggest that, if harm has been caused by a hazard that was the subject of previously sealed documents, a jury could use that earlier secrecy agreement as good cause for assessing punitive damages in this later case. With such a rule in place, secrecy agreements would not be a risk-free default position; for hiding the truth, the corporation could pay a steep price the next time around.

Ending this practice will come down to the judges and the rules established for them. It is their responsibility to protect the public. They should do so.

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Peter J. Spiro teaches law at Temple University and is the author of Beyond Citizenship: American Identity After Globalization which charts the trajectory of American citizenship and shows how American identity is unsustainable in the face of globalization.  The article below looks at citizenship in the light of July 4th.

As happens every July 5th, tomorrow’s newspapers will carry reports of attractively diverse groups of immigrants naturalizing as U.S. citizens in uplifting ceremonies, flags waving, with predictable but heartfelt welcomes from judges and elected officials. This Independence Day ritual is perhaps the only public relations play of the federal government’s immigration agencies that seems to work. It bears out all our longings that citizenship hold a sacred place as a source of national pride and renewal.
But the veneers of citizenship are wearing thin.

Start with the naturalization ceremonies themselves. The uplifting July 4th ceremonies are not the norm. More than half of all naturalizing immigrants take their oaths of citizenship in administrative procedures at local offices of U.S. Citizenship and Immigration Services, successor to the old INS.

The surroundings are drab, often on the same hallways as hearing rooms in which less fortunate immigrants fight deportation. Low-level USCIS bureaucrats preside. As applicants stand in line to finalize their paperwork (after which they receive a 102-page pamphlet on U.S. history and a cheaply-produced American flag, apparently not made in China), the space takes on the feel of a waiting room. President Bush delivers a taped welcome via outdated technology along with a cloying version of “America the Beautiful.” The backdrop has all the transformative feel of a DMV.

Which it might as well be, for many of the participants. In their Sunday best and accompanied by families, the event has clearly retained its traditional significance for some. One has to feel a little sorry for these citizens-momentarily-to-be, given the tawdriness of the official reception.

But others by all appearances might as well be signing up for their drivers licenses. And who can blame them. The application process leading up to this day is slow and expensive. Application backlogs now stretch out as long as two years. In August 2007, the application fee almost doubled, to $675. For an immigrant family of four, that’s more than $2500. Those July 4th ceremonies would look a lot less dignified with money orders in the picture.

It doesn’t buy you all that much. The rights of citizenship are vanishingly small. In this presidential election year, those stories tomorrow will include quotes from new citizens looking forward to casting ballots in November. But studies consistently show that naturalized citizens are less likely to register and vote than their native-born counterparts. In 2006, for instance, only 37% of naturalized citizens voted, compared to 49% of native citizens. Voting rights can’t be motivating many naturalization applicants.

The recent spikes in naturalization applications have more prosaic explanations. Some rushed to file under the wire of the fee increase. Since a harsh 1996 rewrite of the immigration law and more so since 9/11, many immigrants have acquired citizenship on a defensive basis, to insulate themselves absolutely from deportation.

Others are looking for the advantages that citizens have in securing the admission of relatives. Permanent resident aliens can’t petition for the admission of their parents, for example. Citizens can.

Some applicants are even becoming citizens by way of an exit strategy. Citizens are free to come and go from the United States. Not so green-card holders, who may lose their permanent residency status after absences as short as six months. A growing number of aliens have been acquiring U.S. citizenship so that they can return to their homelands, secure in their travel privileges in and out of the U.S. to visit family and friends or to take advantages of retirement and other public benefits.

And a significant majority of naturalization applicants are holding on to their native citizenship even as they acquire American nationality. Nineteen out of the top twenty source countries for immigrants to the U.S. now accept dual citizenship. U.S. citizenship can play a sort of add-on function, subordinated to homeland ties.

So naturalization applicants may not be acting on sentimental attachments in becoming American citizens.

None of which is to say that naturalization for instrumental purposes should be policed, or in any event that it could be. But citizenship as an institution looks thinner after one brings into view those applicants who are not waving any flags against the backdrop of those dreary immigration agency offices.

Recent debates on immigration reform have been unthinkingly framed in terms of “a path to citizenship,” as if citizenship’s meaning were clear. But it’s time to get beyond our July 4th renderings of citizenship. The move might supply a focal point for revisiting the disasters of our immigration policy. It might also lead us to a new understanding of what membership in the national community does, and does not, stand for going forward.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Zelinsky discusses the U.S. Supreme Court’s recent decision in MetLife v. Glenn. That decision, he concludes, unintentionally reinforces the trend from defined benefit to defined contribution plans. Under MetLife v. Glenn, employers which sponsor and administer defined benefit pensions operate under a conflict of interest which subjects their administrative decisions to greater legal scrutiny.

Wanda Glenn was an employee of Sears, Roebuck & Company (“Sears”) and, as such, was covered by the Sears long-term disability insurance plan. Metropolitan Life Insurance Company (“MetLife”) both administered and insured the Sears plan. Ms. Glenn applied for continuing disability benefits. MetLife, as plan administrator, denied Ms. Glenn’s application for benefits which, if granted, MetLife, as the plan’s insurer, would itself have paid.

Ms. Glenn sued. Her lawsuit made its way to the U.S. Supreme Court which held in MetLife v. Glenn that, in light of the discretion confided to MetLife by the Sears plan, MetLife’s denial of Ms. Glenn’s disability benefit was to be reviewed judicially under a deferential “abuse of discretion” standard. However, the Court further stated, MetLife, as plan administrator, operated under a conflict of interest since any benefits MetLife granted as such administrator MetLife itself also paid as the plan’s insurer. Hence, in assessing whether MetLife, as plan administrator, abused its discretion, the courts must, among other factors, “take account of the conflict” MetLife faced as a plan administrator which was also the plan insurer. Such conflict of interest might “act as a tie-breaker when the other factors are closely balanced.”

MetLife v. Glenn has engendered extensive discussion. However, so far, one aspect of this decision has gone unremarked: MetLife v. Glenn is one more unintended push from our legal system, nudging employers away from traditional defined benefit plans towards 401(k) plans and other similar defined contribution retirement arrangements. After MetLife v. Glenn, the administrative decisions of employers sponsoring and administering defined benefit pensions will typically be subject to greater legal scrutiny than will be the administrative decisions of employers sponsoring and administering most 401(k) and similar individual account arrangements. This greater scrutiny incents employers to shift from their defined benefit pensions to defined contribution plans.

Embedded in the traditional defined benefit pension administered by the sponsoring employer is the conflict of interest stemming from the employer’s obligation, as plan sponsor, to pay the costs of the plan — just as MetLife, as insurer, paid from its premium revenues the costs of the Sears disability plan. In the defined benefit setting, greater plan distributions to participants and beneficiaries require greater employer contributions to the plan. Consequently, any distribution denial by the employer sponsoring a traditional defined benefit pension implicates the conflict of interest in which MetLife found itself: If the employer as plan administrator denies plan benefits, it thereby reduces its costs as plan sponsor.

In contrast, an employer sponsoring and administering a typical defined contribution plan usually has no such conflict of interest since the individual accounts of such a plan belong to the participants. If, for example, an employer, as administrator of a 401(k) plan, denies a participant a hardship distribution from the plan, that denial does not decrease the employer’s costs; it merely delays the distribution to the participant of his 401(k) account until later. Since there is no conflict of interest in that setting, under MetLife v. Glenn, the employer’s decision will receive greater deference if challenged in the courts.

An important factor causing the decline of traditional defined benefit pensions and the concomitant rise of individual account arrangements like 401(k) plans has been the heavy regulatory cost imposed on defined benefit plans. MetLife v. Glenn represents the latest such cost, an unintentional cost, perhaps a small cost, but a cost nonetheless. Employers who sponsor and administer defined benefit plans are now on notice that, because of their conflicts of interest, their administrative decisions will generally receive less deference from the courts than will the comparable decisions of their competitors sponsoring and administering 401(k) plans who do not operate under such conflicts of interest. By itself, this will rarely cause an employer to terminate its defined benefit pension and shift to an individual account arrangement. But, to paraphrase the Supreme Court, this is the kind of cost which can act as a tie-breaker when the decision is close.

Consequently, Metlife v. Glenn, by reducing the deference ultimately granted to employers which sponsor and maintain defined benefit pensions, represents one more small, but unintended, push away from such pensions.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Professor Zelinsky criticizes New York’s “convenience of the employer” doctrine for double taxing telecommuters at a time when public policy should be encouraging, rather than hindering, telecommuting. He calls on Congress to pass the Telecommuter Tax Fairness Act to stop such double taxation. Read his past OUPblog posts here.

A gallon of gas today costs $4.00 or more in most parts of the country. The public is concerned, as perhaps never before, about the impact of human activity on the global environment. In this setting, telecommuting has emerged as an environmentally sensitive and economically sensible lifestyle.
By permitting individuals to work at home for part (often much) of the work week, telecommuting removes telecommuters’ cars from the roads, thereby reducing traffic congestion, gas consumption, and automotive pollution. Telecommuting from home also opens job opportunities for persons for whom a conventional, daily trip to the work place is difficult or undesirable – parents’ of small children, disabled individuals, persons who live far from major employment centers. Telecommuting allows employers to hire these individuals who might otherwise withdraw from the labor force.

For all of these reasons, public policy should encourage, or at least not hinder, the growth of telecommuting. Unfortunately, the tax policies of the State of New York discourage telecommuting by double taxing out-of-state individuals who telecommute for New York employers from their out-of-state homes. In particular, New York’s so-called “convenience of the employer” rule imposes nonresident New York income taxes on out-of-state telecommuters on the days they work at home, often hundreds – if not thousands – of miles from New York.

Consider, for example, the recent case of Mr. R. Michael Holt, a human resources compensation consultant who lives in Naples, Florida. In 1999, Mr. Holt worked at his home in Florida for the New York offices of KPMG, LLP and William M. Mercer, Inc. Under the employer convenience rule, New York imposed nonresident income taxes upon Mr. Holt for the income he earned working at home in the Sunshine State, thousands of miles from New York.

When the state in which a telecommuter lives also imposes an income tax, the result of New York’s tax policy is double taxation as the out-of-state telecommuter who works at home must pay tax both to New York and to the state in which she lives. The result is an unfair and inefficient tax penalty for telecommuting, namely, the double taxation of the income earned by the telecommuter on the days she works at her out-of-state home.

New York’s policy is bad, not only for out-of-state persons who telecommute to the Empire State, but potentially for telecommuters throughout the nation and for the employers who employ such telecommuters. If New York can get away with double taxing out-of-state telecommuters, other states will be tempted to emulate New York and likewise tax nonresident telecommuters who work at their out-of-state homes. The upshot will thus be double taxation of telecommuters nationwide when public policy should instead be supporting telecommuting.

Unfortunately, New York’s courts have refused to stop New York’s double taxation of nonresident telecommuters on the days such telecommuters work at their out-of-state homes. In Huckaby v. Tax Appeals Tribunal, New York’s highest court, by a narrow but decisive margin of 4-3, upheld New York’s income taxation of Thomas Huckaby on the days Mr. Huckaby worked at his home in Nashville, Tennessee.

Pending in Congress is legislation which would prevent New York and other states from using the “convenience of the employer” doctrine or any similar artifice to double tax nonresident telecommuters on the days they work at their out-of-state homes. The Telecommuter Tax Fairness Act has attracted bi-partisan support from members of Congress who recognize the importance of telecommuting-friendly public policy.

It is unreasonable for New York to punish telecommuting by double taxing workers who telecommute for New York employers from their out-of-state homes, particularly at a time when sound public policy should encourage telecommuting. There is, however, no sign that New York will alter its irrational “convenience of the employer” rule. Congress should accordingly adopt the Telecommuter Tax Fairness Act to eliminate the ability of New York and other states to double tax nonresident telecommuters on the days they work at their out-of-state homes.

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Mark Simon Davies is a counsel at O’Melveny & Myers LLP, where he works on appellate matters in one of the top Supreme Court and Appellate practices in the country. Davies is the author of Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit.

Yesterday, the Supreme Court issued another significant opinion in patent law. In a unanimous opinion authored by Justice Thomas, the Court held that a patent owner who licenses the sale of components has “exhausted” patent rights even where the components must be combined with additional components to practice the patent. In so deciding, the Court reasoned that the exhaustion doctrine applies to sales of products that include only the “inventive aspect” of the patent. This unanticipated focus of the Court’s decision reflects the Court’s apparent continuing interest in refocusing patent law on protecting the “inventive” contribution.

The question before the Court was whether the patent rights of LG Electronics, Inc. were “exhausted” by its license agreement with Intel Corporation. Under the exhaustion (or first sale) doctrine, “the initial authorized sale of a patented item terminates all patent rights to that item.” Here, LGE owns patents covering various methods of managing main computer memory. LGE licensed Intel to manufacture and sell microprocessors and chipsets that practice the LGE patents. Intel sold the parts to Quanta Computer, a group of computer manufacturers, who made computers using the LGE/Intel microprocessors and chipsets in combination with non-LGE/Intel computer parts. LGE filed a complaint against Quanta, asserting that the combination of the LGE/Intel products with other computer parts infringed its patents. Quanta defended on the ground that LGE’s license to Intel “exhausted” and thus terminated its patent rights.

In siding with Quanta to find that LGE had exhausted its patent rights, the Supreme Court’s opinion proceeds in three steps. The Court begins by rejecting LGE’s argument that the exhaustion doctrine does not apply to “method” claims (i.e., claims that are not linked to a tangible article). The Court was wary that “[e]liminating exhaustion for method patents would seriously undermine the exhaustion doctrine” because patentees “could simply draft their patent claims to describe a method rather than an apparatus.” Next, the Court considered the “extent to which a product must embody a patent in order to trigger exhaustion.” On that question, the Court found that United States v. Univis Lens Co., 316 U.S. 241 (1942), “governs this case.” Just as the product in Univis “embodie[d] essential features of [the] patented invention,” so too Intel’s products embody “[e]verything inventive about each patent” and thus triggered patent exhaustion. “The Intel Products embody the essential features of the LGE Patents because they carry out all the inventive processes when combined, according to their design, with standard components.” Last, the Court determined that LGE’s contract with Intel “authorized” the sale of the products that practiced LGE’s patents (“Intel’s authority to sell its products embodying the LGE Patents was not conditioned on the notice”), and the Court expressed “no opinion on whether contract damages might be available even though exhaustion operates to eliminate patent damages.”

In various procedural respects, today’s decision resembles the Supreme Court’s patent law decisions of the past few terms. As it did most prominently in KSR Intn’l v. Teleflex Inc., 127 S. Ct. 1727 (2007), the Court has once again unanimously reversed a lower court decision based on a long-settled Federal Circuit rule favoring patent owners. As the briefing before the Court had emphasized, the Federal Circuit’s decision in Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992), held that the patent-exhaustion doctrine does not apply to an “expressly conditional sale.” As in KSR, the Supreme Court declined to endorse the Federal Circuit’s “conditional sale” test. Instead, the Supreme Court again emphasized the abiding relevance of its older patent law decisions. Thus, here the Court found that Univis “governs this case” much like the KSR Court found that Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), provides the current “framework” for whether a claimed invention is “obvious.” Unlike KSR, however, the Court did not directly fault the Federal Circuit for a “rigid rule” (or even specifically refer to Mallinckrodt).

As is often the case with Supreme Court opinions, the immediate practical consequences of today’s decision may well be limited. The Court’s ruling that the sale here was not in fact conditional arguably leaves parties free to argue that the Federal Circuit’s “conditional sale” bar on exhaustion remains the law. Moreover, the Court expressly declined to consider whether LGE could use contract law to achieve its apparent objective of requiring its patent devices only to be used in computers manufactured with LGE parts.

Nevertheless, today’s Quanta decision provides a strong indication that the Supreme Court intends to continue restricting the enforceable scope of patents. The Solicitor General recommended that the Court hear Quanta. But the Supreme Court went beyond the Solicitor General’s request. Rejecting the advice of the Solicitor General not to reach the question, the Court relied on Univis to hold that the exhaustion doctrine applies to a product that embodies “[e]verything inventive” about the patent even if further “common and noninventive” steps are necessary to practice the patented invention. In this respect, Quanta is in close step with KSR. KSR closed by emphasizing that “the results of ordinary innovation are not the subject of exclusive rights under the patent laws.” So too in Quanta, the Court explained that a patent owner could not avoid the impact of the patent exhaustion doctrine merely because the patent includes “common” steps. In both cases, the Court has refocused patent law on protecting the “inventive aspect” of a patented invention.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, he discusses the recent decision of the California Supreme Court on same-sex marriage and calls for the abolition of civil marriage. Read his past OUPblog posts here.

By a 4-3 vote, California’s highest court has ruled that California’s constitution requires the Golden State to legally recognize the unions of same-sex couples as marriages. Supporters of the court’s decision hail it as a victory for equality. Opponents criticize the ruling as unwarranted judicial activism rejecting traditional morality.

I suggest a third perspective: The California court’s divided decision indicates the desirability of abolishing civil marriage. The state should not define, regulate or characterize relationships among consenting adults. By abolishing civil marriage, the law would deregulate marriage. Such deregulation would strengthen marriage as a social, cultural and religious institution while eliminating the divisiveness inherent in one definition of marriage being imposed politically upon a diverse polity.

We do not yet know the final outcome in California. Opponents of the court’s decision have vowed to place a constitutional amendment on the November ballot, reversing that decision. The California Supreme Court itself was deeply divided, as was the Massachusetts Supreme Court when it required the Bay State to recognize same-sex marriages. New York’s highest court was similarly divided in rejecting the constitutional claims of same-sex marriage proponents in the Empire State. In other states, electorates have opposed same-sex marriage, sometimes by lopsided majorities, sometimes more closely.

In short, Americans have profound, sincere and differing views about the nature of marriage. In the absence of a broad consensus, it is neither feasible nor desirable for the law to enshrine a single definition of marriage.

A world without civil marriage would still be a world with marriage. Indeed, marriage would thrive in a deregulated world. Released from a single, state-imposed definition of marriage, religious, cultural and other groups would promote their respective versions of marriage. Once the law no longer monopolizes the definition of marriage, individuals would contract for their own versions of the institution. Just as a free market in religion has made Americans a religious people, a competitive market for marriage would strengthen marriage by unleashing the entrepreneurial energies of groups promoting their own models of marriage.

Consider in this context “covenant marriage,” a form of marriage under which couples, before solemnizing their marriages, agree to tougher standards for securing a divorce. So far, only three states have been willing to authorize covenant marriage. However, in a world without civil marriage, couples desiring the greater precommitment of covenant marriage would be able to contract for it. In a world without civil marriage, the advocates of covenant marriage, instead of spending their energy and effort lobbying state legislatures, would instead devote those resources to promoting their vision in the competitive marketplace for different forms of marriage.

Or consider two churches, one which favors same-sex marriage, one which does not. In a world without civil marriage, each of these churches would perform the marital ceremonies it favors and would eschew the ceremonies it opposes. In a world without a legal definition of marriage, all of the marriages performed by both of those churches would have the same legal status: none.

Upon the dissolution of familial relationships, the courts would be required to interpret and enforce the contracts defining those relationships. In the absence of such contracts, the courts would be required to make decisions about income, assets and minor children, just as they do today. However, in any litigation, the parties’ characterization of their relationship – marriage, civil union, cohabitation, domestic partnership, or otherwise – would be legally irrelevant.

A world without civil marriage would not be without its own issues, not the least of which would be the question of transition: What to do with the civil marriages (such as mine) which predated the deregulated marital regime? My preference would be a relatively short transition period in most matters to permit couples to adjust to the new world without civil marriage.

The new deregulated marriage regime would require states to revise their laws in a variety of areas, e.g., tax law, probate law, to avoid references to individuals’ marital status. However, the resulting changes would be less extensive and less unsettling than many might suppose.

In the final analysis, a diverse polity must be genuinely tolerant of genuine diversity. In the arena of marriage, Americans today have widely differing views of marriage. In such an environment, it is neither desirable nor feasible for the state to impose a one-size-fits-all definition on the institution of marriage. Both the polity and marriage itself would be better off by abolishing civil marriage.

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Amos N. Guiora is a Professor of Law at the S. J. Quinney College of Law, University of Utah, where he teaches criminal law, global perspectives on counterterrorism, religion and terrorism, and national security law. He served for nineteen years in the Israel Defense Forces.  Recently he testified before the House of Representatives Homeland Security Subcommitee about the importance of sharing information in preventing terrorism.  You can watch the video here and download the transcript here.

On May 15, 2008 I testified before the House Of Representatives Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment. The Subcommittee, chaired by Congresswoman Jane Harman (D-Cal) was particularly interested in the subject of resilience—that is whether government and business alike are prepared for a terrorist attack on two different levels: preparing for an attack and ensuring continuity in the aftermath of the attack.

The two issues—before and after—are the essence of counter-terrorism preparation. For them to be truly implementable, government must engage in information sharing on all three levels (state, local and federal) and also with the business community. While the idea of information sharing with the business community raises important –and legitimate—questions within the law enforcement community, it is an absolute requirement.

During the course of my testimony, the Members of the Subcommittee were particularly interested in the difference between the American and Israeli cultures—in particular how Israelis respond to terrorism and understand that attacks are, in a sense, inevitable and how that understanding enables society to more quickly “rebound” in the aftermath of an attack. Furthermore, Members inquired as to the nature of the information sharing relationships and whether this did not raise important legal and constitutional issues.

To ensure a resilient homeland in a post-9/11 society, the United States must have a homeland security strategy that (1) understands the threat, (2) effectively counters the threat while preserving American values, (3) establishes a system of accountability, and (4) creates public-private and federal-state partnerships facilitating intelligence sharing and the continuity of society in the aftermath of an attack.

It is necessary to work with clear definitions of the terms and concepts that frame this strategy for resiliency. As I have previously articulated, “one of the greatest hindrances to a cogent discussion of terrorism and counterterrorism has been that the terms lack clear, universal definitions.” For this reason, I provide clear, concrete definitions of terrorism, counterterrorism, homeland security, effectiveness, accountability, and resiliency—the key terms in articulating the strategy for a resilient homeland. In addition to these definitions, I include two critical matrices for: Determining Effectiveness and Implementing Accountability.

The central focus of this testimony examines the dire consequences of the break-down in communications following both 9/11 and Hurricane Katrina, which suggests that in order to realize resiliency in the future, it is paramount that there is clear cooperation and coordination between the public sector and the private sector. Effective resiliency will ultimately be tied to establishing public-private partnerships.

In establishing these partnerships, they must be based upon three critical components: (1) clearly defined roles and responsibilities; (2) articulating a coordinated prevention-response plan; and (3) repeated training and/or simulation exercises using the prevention-response plan against realistic disaster/terror scenarios. By strategically strengthening security, sharing intelligence, and creating plans for post-attack procedures (such as evacuation plans, transportation plans, establishing places of refuge, and having basic supplies available to aid first-responders) private partners become the key to a secure and resilient homeland.

The importance of information before, during and after a disaster or attack is vital to resilience. Information sharing is, perhaps, the single most important aspect of successful resilience. Information sharing requires government agencies (federal, state and local) to share information both amongst themselves and with the private sector. Furthermore, it requires that the private sector—subject to existing legal and constitutional limits—share information with the public sector. Successful information sharing requires cooperation and coordination both internally (within sectors) and cross sectors (between public-private entities).

The lessons of 9/11 and Katrina speak for themselves. Resilience in the aftermath of either disaster or attack requires federal, state and local government agencies to understand that information sharing is vital to the nation’s homeland security. That information sharing process must include the private sector. Otherwise, the mistakes of yesterday will inevitably re-occur.

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Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, he criticizes proposals for the states to administer private sector retirement savings plans. Read his past OUPblog posts here.

Legislators throughout the country are proposing that states start to administer private sector retirement savings plans. While the details of these proposals vary from state to state, they all provide that the states should embark upon the business of managing private sector individual account arrangements.

In Connecticut, for example, the state senate, before recently adjourning, passed S.B. 652 which would have created a state-sponsored “universal 401(k).” This legislation would have mandated the state’s comptroller to establish and administer a state-run “tax-qualified defined contribution retirement program” for the self-employed, the tax-exempt institutions, and the “small employers” of the Nutmeg State.

On the other side of the country, currently pending in the California legislature is AB 2940. If enacted, this legislation would authorize CalPERS, the Golden State’s public pension plan, to accept from California residents payroll deposits for state-administered individual retirement accounts. Similar legislation has been introduced in a variety of other states.

The concern animating all these proposals is well-founded. The defined contribution paradigm has worked well for many American households, in particular, middle- and upper-middle families who save and invest through 401(k) plans and IRAs as well as the employees of large employers which sponsor and typically match such employees’ 401(k) contributions. Despite this success, it is troubling that lower-income workers and smaller employers are severely underrepresented in the individual account system.

This problem, however, has deeper roots than is acknowledged by the advocates of state-administered private sector retirement plans. The current retirement savings system relies heavily on the income tax benefits of contributing to tax-qualified arrangements such as 401(k) accounts and IRAs. Those tax benefits are substantial for middle class and more affluent workers who defer significant federal income taxation through their tax deductible contributions to such accounts.

However, low income workers today do not pay significant federal income taxes. They thus have little, if any, tax motivation to make 401(k) or IRA contributions. A deductible contribution is not a meaningful incentive for someone in a low or zero tax bracket. This would remain the case even if states compete with the private sector suppliers of retirement plans. A low-income worker who derives no tax benefit from a deductible IRA contribution at his neighborhood bank will similarly derive no tax benefit from contributing to an IRA administered by his state’s comptroller.

Moreover, even if they want to make such retirement savings contributions, most low-income workers lack the discretionary income to do so.

The private market for retirement savings products is broad and deep. Today, every reader of a major newspaper or of the internet is bombarded by the advertising of the financial services industry, selling 401(k) plans and IRAs. There is no market failure requiring state-provided retirement savings for the private sector.

There is, furthermore, an unintended irony in the idea that the states should ride to the rescue of the private retirement system. The states can’t keep in order in their own pension systems. The states’ underfunding of their own pension plans is today a serious problem. There is something untoward about states which cannot solve their own pension difficulties purporting to act as the saviors of the private sector retirement system.

There is an important step the states can take if they are serious about encouraging 401(k) and IRA participation among low-income individuals. In particular, the states could, in their own income taxes, match part or all of the federal savers’ tax credit which subsidizes the retirement saving of low-income persons by providing a tax credit if a low-income worker contributes to an IRA or 401(k) account.

However, there is no compelling case for the states to enter the private retirement savings business. Let them put their own pensions on solid financial footings first.

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