UCLA Law Review Volume 58, Issue 3


Defendant Class Actions and Patent Infringement Litigation

A crisis point is emerging at the nexus of patent law and economics. Patent rights are designed to serve as an incentive to invest in innovation. However, notoriously high litigation costs, a proliferation of invalid patents in the marketplace, and an inability to enforce low-value patents are threatening to inhibit the progress of science and the useful arts. This Comment argues that the defendant class action mechanism is necessary to achieve the patent system’s goals and to address the aforementioned issues. After analyzing the economic, substantive, and procedural advantages of defendant class actions and examining the obstacles preventing the creation of defendant classes of patent infringers under the Federal Rules of Civil Procedure, this Comment advocates a workable, three-part framework designed to reconcile the utility of defendant class actions with the incompatible provisions of Rule 23.

What's Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation

This Comment addresses the threat posed to the bankruptcy process by creditors whose true economic incentives are not aligned with their disclosed claims. Under current bankruptcy law, these so-called “empty creditors” may actively participate in the debtor’s reorganization without ever disclosing their real economic interests. This Comment begins by exploring the extent to which empty creditors have influenced modern Chapter 11 cases. It then details the current controversy concerning the degree of position-level transparency required by Rule 2019 of the Federal Rules of Bankruptcy Procedure. Finally, it describes and critiques a proposed amendment to Rule 2019 and offers a disclosure regime that would mitigate the harms created by empty creditors.

Commentary on The Need for a Research Culture in the Forensic Sciences

Asked to comment on a collective discussion paper by Jennifer L. Mnookin et al., this Commentary identifies difficulties the authors encountered in defining or agreeing on the subject matter “forensic science” and its perceived deficiencies. They conclude that there is a need for a research culture, whereas this Commentary calls for the development of a forensic science culture through the development of forensic science education fed by research dedicated to forensic science issues. It is a call for a change of emphasis and, perhaps, of paradigm.

Commentary on The Need for a Research Culture in the Forensic Sciences

The National Academy of Sciences’ call for change in forensic sciences will not be successful until lawyers fairly bring these standards to the attention of the courts, and the judges, both district and appellate, rigorously enforce them.

Commentary on The Need for a Research Culture in the Forensic Sciences

A number of articles written over the past two years have addressed the need to strengthen forensic science, not only in the United States but internationally. Most have focused on the National Research Council of the National Academy of Sciences’ (NAS) February 2009 report entitled Strengthening Forensic Science in the United States: A Path Forward. In looking for solutions to problems we all know existed pre-2009, most point fingers instead of looking inward. Finally, after hundreds of pages of “we know how to solve this problem” monologues, a learned treatise appears that goes beyond the NAS Report in addressing the need to strengthen forensic science. The Need for a Research Culture in the Forensic Sciences by Jennifer Mnookin et al. is one of the first publications to minimize the blame game that has become so pervasive in evaluating forensic science. This article successfully provides a root cause assessment of the salient issues we face today and contains solutions that those who care about forensic science should consider.

The Need for a Research Culture in the Forensic Sciences

The methods, techniques, and reliability of the forensic sciences in general, and the pattern identification disciplines in particular, have faced significant scrutiny in recent years. Critics have attacked the scientific basis for the assumptions and claims made by forensic scientists both in and out of the courtroom. Defenders have emphasized courts’ longstanding acceptance of forensic science evidence, the relative dearth of known errors, and practitioners’ skill and experience. This Article reflects an effort made by a diverse group of participants in these debates, including law professors, academics from several disciplines, and practicing forensic scientists, to find and explore common ground. To what extent do the forensic sciences need to change in order to place themselves on an appropriately secure foundation in the twenty- first century? We all firmly agree that the traditional forensic sciences in general, and the pattern identification disciplines, such as fingerprint, firearm, toolmark, and handwriting identification evidence in particular, do not currently possess—and absolutely must develop—a well-established scientific foundation. This can only be accomplished through the development of a research culture that permeates the entire field of forensic science. A research culture, we argue, must be grounded in the values of empiricism, transparency, and a commitment to an ongoing critical perspective. The forensic science disciplines need to substantially increase their commitment to evidence from empirical research as the basis for their conclusions. Sound research, rather than experience, training, and longstanding use, must become the central method by which assertions are justified. In this Article, we describe the underdeveloped research culture in the non-DNA forensic sciences, offer suggestions for how it might be improved, and explain why it matters.

Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19

Though Federal Rule of Civil Procedure 19 might appear to be one of the more esoteric of the Federal Rules, it is actually an exceptionally powerful device: It permits defendants to obtain dismissal of cases over which the court has valid jurisdiction, even when no other forum exists in which the action can be brought. This Article argues that, while Rule 19 was originally intended to facilitate the consolidation of litigation by requiring joinder of absent parties, it has evolved in an important subset of cases to serve a nearly opposite purpose. That is, in many cases in which a party may be affected by the litigation but cannot be joined because it is a sovereign possessing immunity from suit, courts have developed a near-categorical rule that the entire case may be dismissed—even if that means that the plaintiff is permanently denied a remedy. Further, the U.S. Supreme Court recently appeared to endorse this approach, holding that Philippine human rights victims’ claims to their former regime’s assets could not be litigated because two Philippine governmental entities could not be joined in the case. In such situations, this Article argues, Rule 19 functions almost as an abstention doctrine, permitting courts to avoid decisions in cases that may raise sensitive intergovernmental or foreign-relations issues. This use of the rule is problematic for several reasons. It is not authorized by (or even discussed in) Rule 19’s text, and it appears at odds with the original purpose of Rule 19: to promote consolidated litigation of disputes, not to dispose of them entirely. Further, it permits the interests of the plaintiff—and the public interest in resolution of disputes—to be systematically slighted. Thus, although there may be situations in which an absent party’s sovereign immunity should be taken into account, courts have gone too far in their solicitude for absent sovereigns. This Article explores how this phenomenon has evolved and suggests ways in which courts’ analysis of Rule 19 factors should be modified to take account of the rule’s fundamental purposes.

Good Faith and Law Evasion

Laws imposing sanctions can be self-defeating by supplying incentive and guidance for actors engaged in socially undesirable activities to reshape conduct to evade penalties. Sometimes this is deterrence. But if the new activity, as much as the old, contravenes the legal project’s normative stance, it is a failure of law. The problem of evasion warrants response in many fields—not least in criminal law—despite the frequent and oversimplified assumption that legality-related values require narrow prohibitions that unavoidably permit evasion. Three common responses to evasion have serious deficits. Foregoing control of evasion is a mistake if large portions of an activity warranting regulation occur along (and move towards) the margins of a legal rule. Regulating through frequent iteration of narrow rules is costly and may leave law a step behind moving targets. Using broad standards inevitably leads to overbreadth, creating space for mischief in the form of excess enforcement discretion and undeserved sanctions. A fourth approach holds more promise and has eluded treatment in scholarship. Law can proceed more directly by using doctrine designed to identify the evasive actor. I argue that mental- state inquiry is the best way to do this; demonstrate that the law has long engaged in a version of this approach in its use of good faith doctrines; and conclude that a form of good faith doctrine could be further exploited to respond to evasion in criminal and corporate law.