UCLA Law Review Volume 55, Issue 3


Does Practice Make Perfect? An Examination of Congress's Proposed District Court Patent Pilot Program

Over the past few years, patent law reform has been a hot topic of congressional debate. The cost and complexity of patent litigation and the frequency with which district judges are getting reversed on questions of claim construction are often cited as cause for alarm. Heeding the calls for reform, a patent pilot program for district courts was recently unveiled in the U.S. Congress in an attempt to address both of these concerns. The pilot program sailed through the U.S. House of Representatives without opposition. The U.S. Senate has yet to consider the companion bill. This Comment introduces the pilot program and examines whether the concept of judicial specialization through an increased patent caseload is likely to result, as the bill’s proponents argue. Judicial specialization for patent cases is popular in other countries; however, it has yet to catch on at the trial court level in the United States. While judicial specialization has a number of associated benefits, negative aspects, such as a likely increase in forum shopping, cannot be ignored. After exploring the costs and benefits of specialization, this Comment reviews the mechanics of getting into the pilot program. It then presents an original empirical case study that examines whether district court judges who currently hear the most patent cases are better at claim construction, as evidenced by reversal rates, than those who hear very few patent cases. The Comment then suggests ways to strengthen the pilot program so that it will be capable of bringing about true reform. Finally, it concludes by considering other options if the program is not ultimately adopted by Congress.

Reorienting the Debate on Presidential Signing Statements: The Need for Transparency in the President's Constitutional Objections, Reservations, and Assertions of Power

Presidential signing statements had been considered relatively obscure executive policy tools that have been used since at least the time of President Monroe. Their usage by former presidents aroused little attention until highly publicized reporting alleged that President George W. Bush had issued an unprecedented number of signing statements relative to his predecessors. The intense debate that followed in the legal community and among media commentators raised claims that signing statements threatened separation of powers as a line-item veto that deprived the U.S. Congress of the opportunity for a veto override. The American Bar Association taskforce on the subject released a bipartisan report that criticized such signing statements and urged the president to halt the practice. This Comment argues that the genuine constitutional mischief of signing statements arises from the manner in which they are used rather than the instruments themselves because signing statements are not self-executing and, thus, have no practical or legal effect. The misplaced emphasis of the debate on the legitimacy of the practice is further transported into the proposals offered within the current debate, which accordingly are flawed because of their misdiagnosis of the problem. The debate should shift its focus toward the true separation of powers threat: how the vague legal boilerplate and sweeping generality that are characteristic of President Bush’s signing statements have created uncertainty over whether the president’s actions conform to his signing statements. Consequently, the unknown practical effect of signing statements impedes congressional oversight. Congress and the public should respond by exerting political pressure on the president to make his views and intended actions more transparent in his signing statements. Increased transparency would promote cooperation with Congress, provide Congress, courts, and the public the opportunity to strike the proper separation of powers balance with the president, and preserve the legitimacy of signing statements as a meaningful executive policy tool.

An Aesthetic Defense of the Nonprecedential Opinion: The Easy Cases Debate in the Wake of the 2007 Amendments to the Federal Rules of Appellate Procedure

In this Article, I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80 percent of the output of the federal courts of appeals. The recent amendment to Federal Rule of Appellate Procedure 32.1(a), requiring that all circuits allow citation to NPOs, has provoked considerable debate about how, and whether, to issue written dispositions in the class of cases currently resolved by NPOs. I defend the issuance of NPOs not as a necessary concession to judicial overwork, but rather as a valuable decisional form that plays a useful if not vital role in inculcating in practitioners the perceptual faculties required to classify, analyze, and innovate within the cultural tradition of the common law. I identify certain features of NPOs that particularly foster this situation sense, and examine current circuit practices to develop a model of a pedagogically and aesthetically successful NPO.

No Slavery Except as a Punishment for Crime: The Punishment Clause and Sexual Slavery

This Article is about the hidden complexity of the textual exception to the Thirteenth Amendment. The amendment mandates that there shall be no slavery “except as a punishment for crime.” At first glance, the exception seems insignificant: The drafters sought to free the slaves, but did not want to curtail the power of state governments to sentence criminals to imprisonment or hard labor. Some courts, however, have interpreted the punishment clause more broadly, holding that prisoners are categorically exempt from the Thirteenth Amendment’s protections. Are these courts correct? The question is not merely academic. The extensive documentation of sexual slavery in American prisons makes resolving the scope of the punishment exception critical. This Article argues that despite the explicit wording of the punishment clause, prisoners retain Thirteenth Amendment rights while in prison. Drawing on multiple approaches to constitutional interpretation, this Article concludes that the Thirteenth Amendment protects prisoners against sexual slavery.

The Convergence of Good Faith and Oversight

In Stone ex rel. AmSouth Bancorporation v. Ritter, two important strands of Delaware corporate law converged; namely, the concept of good faith and the duty of directors to monitor the corporation’s employees for law compliance. As to the former, Stone put to rest any remaining question as to whether acting in bad faith is an independent basis of liability under Delaware corporate law, stating that “although good faith may be described colloquially as part of a ‘triad’ of fiduciary duties that includes the duties of care and loyalty, the obligation to act in good faith does not establish an independent fiduciary duty that stands on the same footing as the duties of care and loyalty. Only the latter two duties, where violated, may directly result in liability, whereas a failure to act in good faith may do so, but indirectly.” Nevertheless, this holding may not matter much, because the Stone court made clear that acts taken in bad faith breach the duty of loyalty. As a result, instead of being recognized as a separate fiduciary duty, good faith has been subsumed by loyalty. In this sense, Stone looks like a compromise between those scholars and jurists who wanted to elevate good faith to being part of a triad of fiduciary duties and those who did not, with the former losing as a matter of form, and the latter losing as a matter of substance. As to the duty of oversight, Stone confirmed former chancellor William Allen’s dicta in In re Caremark International Inc. Derivative Litigation that the fiduciary duty of care of corporate directors includes an obligation for directors to take some affirmative law compliance measures. In Stone, the Delaware Supreme Court confirmed “that Caremark articulates the necessary conditions for assessing director oversight liability.” This Article argues that the convergence of good faith and oversight is one of those unfortunate marriages that leave both sides worse off. New and unnecessary doctrinal uncertainties have been created. This Article identifies those uncertainties and suggests how they should be resolved.