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Legal developments to watch for in 2015

January 12, 2015

With a new year underway, Penn Law asked several of its faculty members to look ahead and predict some of the key legal issues that will be discussed and debated in the upcoming year. From executive authority to intellectual property, here are just a few of the legal developments to watch for in 2015.

Federal Practice and Procedure

The most important development in the law of federal practice and procedure during 2015 is likely to be a set of amendments to the Federal Rules of Civil Procedure governing pretrial discovery — the process by which litigants are required to provide information relevant to their claims and defenses before trial. Unless blocked by the Supreme Court or Congress, which is not expected, these amendments will become effective December 1, 2015. They were extremely controversial when proposed, eliciting more than 2,300 written comments.

Although the rulemakers made some changes in response to comments, many critics believe that the surviving amendments could effectively deny access to court for many litigants the proof of whose claims rests in the files of their opponents. These critics argue that, by making “proportionality” part of the scope of discovery, instead of a limit on discovery otherwise permitted, and by requiring ad hoc judgments about the costs and benefits of discovery sought in a particular case, the amendments will increase the amount of satellite litigation about discovery, further disadvantaging litigants with fewer resources, and encourage subjective decisions by federal judges, some of whom are hostile to discovery, that are essentially unreviewable on appeal.

In addition, critics argue that, although the stated proportionality factors potentially comprehend the private and social benefits of discovery as well as its private and social costs, social benefits may receive short shrift because they are out of sight and hard to quantify. This is particularly problematic with respect to federal law that Congress intended to be enforced through private litigation, such as laws barring employment discrimination (among many others), since broad discovery has long been recognized as essential to effective enforcement. Indeed, some critics see the 2015 amendments as but another instance of retrenchment in a long-running campaign to restrict access to court and private enforcement, a campaign in which the Supreme Court has been the most successful branch, primarily through decisions that purported to interpret Federal Rules, some of which effectively amended them outside of the process prescribed by Congress. 

Stephen B. Burbank, David Berger Professor for the Administration of Justice

 

A Year of Checks and Balances

The upcoming year will bring continued political and legal controversy over President Obama’s executive authority. The president’s lame duck status, combined with Republican control of both houses of Congress starting in January, means that Obama will either need to forge compromises like those in the recent appropriations bill — or he will have to “go it alone.” Although more compromises might be possible, in today’s polarized political climate we probably shouldn’t count on many of them. President Obama will still have a strong incentive to pursue his domestic policy priorities through unilateral administrative action. So far, he seems far from reluctant to exercise these powers of an “administrative president.” Yet his actions have not escaped challenge, and the controversy will not end with the calendar year. The House has already filed a lawsuit challenging the Obama Administration’s delays in implementing deadlines in the Affordable Care Act. More than 15 states have sued over the administration’s expanded deferred action policy on immigration. Recently, a federal trial court judge raised the legality of the immigration policy in a separate lawsuit, declaring the administration’s actions to be unconstitutional. We can expect more court decisions in the coming year. In addition, when the Environmental Protection Agency finally issues its rule to control greenhouse gas emissions from power plants, more litigation will ensue. Such litigation will not be the only, or perhaps even the most important, battleground over presidential power. The new Republican Congress will almost surely pass legislation seeking to undercut the President’s powers and priorities, whether on health care, immigration, energy and environmental policy, and financial regulation.  The Congress may also succeed in passing bills more generally to reform regulatory procedures and constrain administrative action. One doesn’t have to go too far out on limb to predict that in 2015 we will see the renewed use of yet another important aspect of presidential authority: the veto power.

Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation

 

Intellectual Property Law

The year 2015 should be another interesting year in intellectual property law. In a nutshell, we will see how legislative and judicial actions narrowing the scope and reach of patent protection and enforceability continue to play out. Congress will likely take up patent reform again, and probably pass it this time, while the Federal Circuit and the USPTO will deal with aftershocks from recent Supreme Court decisions on patentability and the new inter partes review process begun under the America Invents Act.

Congress’s attempts to pass legislation dealing with patent reform (a.k.a. “anti-troll” legislation) in the 113th session stalled when Senator Leahy took his Patent Transparency and Improvements Act off the Senate agenda in May 2014, amid criticism that the bill would severely impact the ability of all patent holders to legitimately enforce their rights. Although two recent Supreme Court rulings eased the standard for obtaining attorney’s fees for abusive behavior in patent cases, the cases have not lessened Congress’s sense of urgency. This is a bipartisan topic that also coincidentally shares great popular public support. Since the House already unanimously passed patent reform legislation in the 113th session, the Senate now has a Republican majority, President Obama has indicated his support, and even many states have gotten involved by passing consumer protection bills addressing patent suit pleading requirements, it seems highly likely that Congress will address patent reform again in the 114th session. It just remains to be seen how extreme the bill will be. It would be reasonable to expect some version of fee shifting, limits on discovery, requirements to list all parties in interest, and requirements to list more specific information in pleadings.  

In addition, the Federal Circuit is applying new patentability standards addressed under the Supreme Court’s Alice v. CLS Bank (abstract ideas do not become patentable subject matter when implemented by a computer) and Association for Molecular Pathology v. Myriad Genetics (substances occurring in nature are not patentable) opinions. Since the cases did not set bright line tests over what is and is not patentable subject matter, courts and litigators are looking to these Federal Circuit cases for critical guidance. Some commentators are even calling for legislators to rewrite section 101 of the Patent Act to clarify the definition of patentable subject matter, although that will likely not be either an easy or a quick process, and will surely not wrap up in 2015. Meanwhile, the Federal Circuit and the USPTO are handling rapidly increasing numbers of inter partes review proceedings, a process introduced by the America Invents Act. This new method of review permits parties to administratively challenge granted patents, which is cheaper and faster than challenging patent validity in court. Especially given the additional arguments presented by the recent Supreme Court rulings on patentability, these procedures are giving litigation defendants additional power to defend against infringement claims. In sum, patent reform legislation, inter partes review proceedings, and Supreme Court decisions are all limiting patent holders’ power, particularly in the software/business methods and biotech realms. The year 2015 will reveal what this means for these industries and for patent practice.   

Cynthia Dahl, Practice Associate Professor of Law

 

Foreign Policy

This spring, the Supreme Court will decide Zivotfsky v. Kerry, a case about the allocation of control over key aspects of U.S. foreign policy. Unusually, it involves a flat refusal by the President to implement a Congressional act. Passed in 2002, this act requires the Secretary of State to permit U.S. citizens born in Jerusalem to list “Israel” as their country of birth on their passports. But since the Truman Administration, U.S. Presidents have held to a policy of not recognizing Jerusalem as belonging to any state, and the Congressional act arguably infringes on what the executive branch believes is an exclusive Presidential power to make decisions about recognition.

Traditionally, the Supreme Court has been wary of getting too involved in the separation of powers between Congress and the President with regard to foreign relations. As Louis Henkin once wrote, “if the courts do speak to separation [of powers] occasionally, they will speak only delphically; hard cases will make as little law as possible, as the Justices reach for the narrowest grounds; and the struggle and uncertainty will continue.” Yet the Roberts Court has proved unusually assertive in foreign relations law and confident — perhaps unduly so — of its ability to resolve the hard cases. Indeed, in an earlier round of litigation, the Court ruled that the issue presented in Zivotofsky is not a political question, which means that the Court will almost certainly reach the merits this time around. A strong ruling in favor of Congressional control would considerably reshape the legal landscape under which U.S. foreign policy is practiced, while a strong ruling in favor of the President would reduce Congressional leverage over Presidential policy determinations. Either of these approaches would upset a status quo that is working reasonably well. My own hope, therefore, is that the Court will decide this case as narrowly as possible.

Jean Galbraith, Assistant Professor of Law

 

Moving Forward, Looking Back

2015 promises a raft of interesting legal issues — big Supreme Court decisions, executive orders, maybe even congressional action. But the biggest development will take place outside the courts, and outside the government. It will take place among the American people. With the release of the Senate Select Committee on Intelligence report on the CIA interrogation program, the American people face a choice. Will we make torture into yet one more partisan issue? Will we show that the split between Democrats and Republicans prevents us from finding common ground on even the most basic questions of American values? Or will we come together, as we did once before, to affirm who we are, and who we are not?

In 1942, following the shock of the attack on Pearl Harbor, the United States ordered over 100,000 people of Japanese descent, most of them birthright American citizens, to leave their homes on the Pacific Coast and move inland. They ended up in detention camps, behind barbed wire, under the gaze of searchlights and guns in guard towers. Defending this program before the Supreme Court, the government engaged in deliberate misrepresentations; relying in part on those misrepresentations, the Court endorsed the evacuation. As for the detention of loyal citizens in camps, the Court said, it was never authorized. Individual bad apples bore responsibility, perhaps, or a rogue agency, but the government had not done it.

It took forty years for an accurate report to come out. Titled “Personal Justice Denied,” it was issued in 1982 by the Commission on Wartime Relocation and Internment of Civilians. It concluded that the relocation was a mistake, based on “race prejudice, war hysteria, and a failure of political leadership” and that reparations were due to those who had suffered. Congress passed a resolution apologizing for the program, which President Reagan signed, and reparations were in fact paid.

This report on our own hysteria and failure of leadership has come out faster. That makes it harder in some ways — it easier to acknowledge the errors of an earlier generation than our own. But it is just as crucial to our identity — as a nation and a people — that we do so.

Kermit Roosevelt, Professor of Law

 

Judicial Elections and Campaign Contributions

Thirty-nine states elect their judges and 2015 promises to be a record breaking year for hard-fought, expensive judicial races. In Pennsylvania alone, there are three vacancies on the state supreme court and they are certain to attract unprecedented national attention and substantial campaign dollars from lawyers and special interests. Thirty states, including Pennsylvania, bar judicial candidates from personally soliciting campaign contributions in order to put distance between judges and their contributors and to maintain an appearance of impartiality that is essential to a fair and independent judiciary. 

On January 20, 2015, the United States Supreme Court is scheduled to hear argument in Lanell Williams-Yulee v. The Florida Bar, an appeal from the Supreme Court of Florida that raises the important question of whether a state’s personal solicitation ban violates a judicial candidate’s free speech rights under the First Amendment. Lanell Williams-Yulee, a county judicial candidate who was fined for signing her name to a fundraising letter, challenged the constitutionality of her discipline on the basis that Florida’s personal solicitation ban was overly broad in restricting her speech as a judicial candidate. The state supreme court rejected her challenge, finding that Florida has “a compelling state interest in preserving the integrity of its judiciary and maintaining the public’s confidence in an impartial judiciary” and holding that there were ample alternate means to raise financial support for judicial campaigns.

Ultimately, the outcome of this case threatens to infuse even more money and direct personal involvement of judges in campaign fundraising activities. The Supreme Court has already struck down a ban on judicial candidates disclosing their views on disputed legal issues in Republican Party of Minnesota v. White, and Florida’s ban on personal solicitations may be the next to fall. If so, there will be little distinction left between judicial and legislative electoral races as campaigns become more costly and prone to undue influence. In the end, proponents of merit selection of judges may be the big winners if Florida’s personal solicitation ban is struck down by the Supreme Court.

Louis S. Rulli, Practice Professor of Law and Clinical Director