Federal Courts
Questioning the Use of Structure To Interpret Statutory Intent: A Critique of Utility Air Regulatory Group v. EPA
A Conversation with Justice Sotomayor
On February 3, 2014, Justice Sonia Sotomayor delivered the James A. Thomas Lecture at Yale Law School. This transcript is adapted (with slight editing) from that lecture, which took the form of a conversation between Justice Sotomayor and Linda Greenhouse. The lecture touched on topics including Justice Sotomayor’s conception of her role and her jurisprudence, her agreements and disagreements with colleagues, and her outreach to the wider public.
Justice Sotomayor and Criminal Justice in the Real World
As part of the symposium to reflect on Justice Sotomayor’s first five years on the Supreme Court, this Essay explores Justice Sotomayor’s contributions to the Court’s criminal law jurisprudence. Professor Rachel Barkow argues that Justice Sotomayor’s prior experience working on criminal law cases as a prosecutor and trial judge have influenced her Supreme Court opinions, which focus on how things actually work in practice, pay close attention to the specific facts of cases, and show sensitivity to the need for checks on government power. These commitments often lead Justice Sotomayor to reject formal rules that would promote predictability at the expense of accurately reflecting the world in which the rules must operate.
Justice Sotomayor and the Jurisprudence of Procedural Justice
In this Essay, Professors Tyler and Meares highlight the ways in which recent social science research supports the model of jurisprudence articulated by Justice Sotomayor. Her model defines building identification with political and legal institutions as an important goal for the Court. It further suggests that this goal is best achieved when the Court exercises its authority using just procedures. That perspective is consistent with research on the foundations of popular legitimacy demonstrating that perceived procedural justice of the Court most strongly shapes it. Social science findings further reveal the factors shaping popular conceptions of procedural justice.
The People’s Justice?
Over the past few decades, the liberal Justices on the Supreme Court have made their most notable extrajudicial communications about the Constitution in academic venues discussing academic issues. This has limited their appeal to broader audiences. In this Essay, Professor David Fontana explores the distinctive path that Justice Sotomayor has pursued during her first five years on the Court. Justice Sotomayor has spoken to academic audiences, as past liberal Justices have. What is most notable about Justice Sotomayor, though, is that she has also appeared in locations and addressed issues that make her and what she discusses of broader appeal; that gives her the potential, as this Essay discusses, to become the “People’s Justice.” Justice Sotomayor thus may make liberal perspectives on the Constitution more known, more liked, and more comprehensible. For those concerned with pursuing a liberal vision of the Constitution, this could be an important development.
Lower Court Popular Constitutionalism
Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors—social movements, the federal political branches, state and local political entities—play an important role in shaping constitutional meaning. To date, the accounts of such scholars have largely focused on the ways that constitutional doctrine at the Supreme Court level can be infiltrated and shaped by such popular constitutional influences. In this Essay, Professor Katie Eyer draws on the events following the Obama Administration’s February 2011 Defense of Marriage Act (DOMA) announcement—and the history of gay equality litigation that preceded it—to develop a theory of the lower federal courts as participants in the popular constitutionalism dialogue.
Investigating Gideon’s Legacy in the U.S. Courts of Appeals
122 Yale L.J. 2376 (2013). This Essay investigates the legacy of Gideon by examining the de facto courts of last resort for convicted offenders: the federal courts of appeals. Part I focuses on the U.S. courts of appeals’ judges and caseloads, revealing that very few federal appellate judges have prior criminal defense experience, despite the fact that half of their caseload consists of criminal and quasicriminal appeals. Part II posits that in an era of mass incarceration, the perspective of judges who have had criminal defense experience may be especially vital because judges’ lack of criminal defense experience may affect their ultimate assessment of the merits of criminal and quasicriminal appeals. The Essay calls for further research to investigate whether federal appellate judges’ prior experience in criminal defense or prosecution may affect their determination of the merits of a criminal conviction.
Inflation Indicators
**This is the sur-reply to a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Lisa Ouellette's response, see here.** In Patent Inflation, I argued that the asymmetry in Federal Circuit review of Patent and Trademark Office (PTO) decisions would lead over time to inflation in the boundaries defining what inventions are patentable. In short essays, Professor Arti Rai and Lisa Ouellette have offered valuable commentary, including both qualitative (Rai) and quantitative (Ouellette) evidence bearing on the question of inflation. In this brief response, I explain how their evidence is consistent with—indeed, bolsters—the theory presented in Patent Inflation. Direct Federal Circuit reversals of PTO decisions make up only a small portion of that court’s caseload. But those cases have exerted outsized influence on the development of the law, particularly across a number of the most significant patent doctrines. This is just as Patent Inflation would predict.
What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings
**This is the second in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Professor Masur's sur-reply, see here.** Professor Jonathan Masur’s recent article, Patent Inflation, argues that the expansion in the boundaries of patentability that has occurred since the creation of the Court of Appeals for the Federal Circuit is caused by cases in which the court reverses patent rejections by the U.S. Patent and Trademark Office (PTO). This Essay examines every Federal Circuit patentability ruling over five different years and shows that reversals of PTO rejections are few in number and doctrinally insignificant. Instead, patentability rulings in infringement suits—which should have no net effect under Masur’s model—likely play an important role in patent inflation because of the presumption of patent validity and the higher stakes in patent litigation. Masur also underestimates the role of the Supreme Court in redrawing patentability boundaries. Although Masur’s simple model is elegant, this Essay argues that it cannot accurately capture the complex phenomenon of patent inflation.
Who’s Afraid of the Federal Circuit?
**This is the first in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Lisa Ouellette's response, see here. For Professor Masur's sur-reply, see here.** Jonathan Masur’s argument regarding “Patent Inflation” rests on the assumption that PTO behavior is determined almost entirely by a desire to avoid reversal of its patent denials by the Federal Circuit. Although the U.S. Patent and Trademark Office (PTO) is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit and other inflationary forces, but also by executive branch actors, industry players, and workload concerns that push in a deflationary direction.
The Solicitor General of the United States: Tenth Justice or Zealous Advocate?
121 Yale L.J. 725 (2011).