Volume 30, Issue 2

A Conversation with Justice Stevens

John Paul Stevens & Linda Greenhouse

Justice John Paul Stevens retired from the Supreme Court on June 29, 2010. Justice Stevens served in the U.S. Navy from 1942 to 1945 and was a law clerk to Justice Wiley Rutledge of the Supreme Court during the 1947 Term. From 1970 to 1975, he served as a judge of the U.S. Court of Appeals for the Seventh Circuit. President Ford nominated him as an Associate Justice of the Supreme Court, and he took his seat December 19, 1975. This transcript is adapted from a dialogue hosted by the Yale Law & Policy Review between Justice Stevens and Linda Greenhouse at Yale Law School on April 24, 2012.

Preemption Conflation: Dividing the Local from the State in Congressional Decision Making

Annie Decker

Under the Federal Constitution’s Supremacy Clause, Congress has the power to preempt state and local laws, rendering them “null, void, invalid and inoperative.” Congress often exercises this power by adopting statutory provisions that expressly preempt certain forms of state or local regulation. The traditional answer to whether federal preemption treats state law and local (city or county) law the same has been an unequivocal yes.

The Fruits of the Convoluted Road to Patent Reform: The New Invalidity Proceedings of the Patent and Trademark Office

Jeffrey P. Kushan

An administrative proceeding before the Patent and Trademark Office (PTO), the agency that grant patents, can thus play a crucially important role in providing a way to contest patents without incurring the risks or costs of litigation. Congress recognized this more than thirty years ago when it created the first of these schemes (ex parte reexamination), and again in 1999 when it created the inter partes reexamination system. Debates over the viability and effectiveness of these reexamination systems, however, have revealed their limitations and identified important principles that Congress has used to create two new procedures—post-grant review and inter partes review—in the Leahy-Smith America Invents Act (AIA).

A Dual Approach to Contract Remedies

Michael D. Knobler

What is a contract? Is it a mutual commitment to perform, or is it merely a promise to deliver the agreed-upon performance or pay damages, with each choice treated as equally acceptable? Most people answer those questions differently than the law does. People overwhelmingly view breach as immoral, favor specific performance if breach occurs, and consider exclusively economic damages undercompensatory. In contrast, courts typically treat breach as a rational option and deny nonbreaching parties specific performance and both nonpecuniary and punitive damages. The courts’ approach seems targeted to the needs of businesses rather than individuals.

This disconnect between most people’s beliefs and court enforcement undermines a foundational claim of contract law, that parties consent to a set of rules to guide their conduct and that courts enforce the parties’ will. Contract law zealously protects this consent principle in other areas, such as the statute of frauds, the doctrine of unconscionability, and the requirement for objective manifestations of intent. It seems incongruous, therefore, to frustrate consent when choosing remedies for breach.

Curing What Ails Us: How the Lessons of Behavioral Economics Can Improve Health Care Markets

Daniel Young

One of the primary goals of the Affordable Care Act’s implementers will be to create a health care system that encourages consumers to make more prudent choices while driving doctors and insurers to provide health care more efficiently. In this ongoing project, the insights of behavioral economics will be crucial. While traditional economic models treat health care as a simple consumption good, about which rational consumers can efficiently make reasoned decisions in light of their preferences, a wide range of empirical studies demonstrates that health care markets are vulnerable to a panoply of market failures. Behavioral economics can help explain some of these failures while suggesting more efficient structures for future health care markets.

This Note proceeds in two parts. In Part I, I review the behavioral economics literature and develop two key themes that should inform policy makers’ thinking about efficient health care markets. In Part II, I apply these themes to three prongs of the ACA and outline ways in which the teachings of behavioral economics can make implementation of the ACA a more effective public-policy endeavor.

Protecting Citizen Journalists: Why Congress Should Adopt a Broad Federal Shield Law

Stephanie B. Turner

On August 1, 2006, a federal district judge sent Josh Wolf, a freelance video journalist and blogger, to prison. Wolf, a recent college graduate who did not work for a mainstream media organization at the time, captured video footage of an anti-capitalist protest in California and posted portions of the video on his blog. As part of an investigation into charges against protestors whose identities were unknown, federal prosecutors subpoenaed Wolf to testify before a grand jury and to hand over the unpublished portions of his video. Wolf refused to comply with the subpoena, arguing that the First Amendment allows journalists to shield their newsgathering materials. The judge disagreed, and, as a result, Wolf spent 226 days in federal prison.

Prioritizing Enforcement in Insider Trading

Nick Walter

Enforcement of insider-trading regulations is currently a high priority for the Securities and Exchange Commission (SEC). This is unsurprising, as the SEC tends to enforce insider-trading laws more vigorously when markets are volatile. But where should the SEC focus its investigations? This Comment argues that the SEC should concentrate on enforcing insider-trading regulations most vigorously against individuals who are not employees or directors of the corporation whose shares are being traded. In contrast, the SEC should regard as a lower priority the enforcement of insider-trading regulations against that corporation’s employees and directors. Companies are capable of taking various forms of action against their own employees and directors who trade in their own stock. But more importantly, as this Comment will show, the companies also have the power to permit insiders to trade on inside information in their own stock.

Bench Memoirs: A Review of Five Chiefs by John Paul Stevens

Chris Michel

In his thirty-four Terms, Justice John Paul Stevens authored some of the Court’s most cited, most despised, and most significant majority opinions. He dissented frequently and forcefully, taking the dramatic step of reading a dissent aloud from the bench more than twenty times. As the Senior Associate Justice for sixteen years on the Rehnquist and Roberts Courts, he assigned opinions when he voted with the majority and the Chief Justice dissented, making him effectively “the Chief Justice of the Liberal Supreme Court.” Since his retirement, commentators have shown how his jurisprudence shaped the law in areas from abortion to affirmative action to antitrust—his field of practice in Chicago a half-century ago.