Article

The Changing Face of the Supreme Court

Thinking about such things as the justices, their clerks, and the Court’s relationships with the media and politics, I find that much has changed since my days with Justice Black. A justice from the Warren Court would find much that is familiar, but there would be surprises, too.  Some of the changes he would observe could be fairly described as paradoxical.

Today’s justices are more diverse than were those of the Warren era. Yet, in some respects, the Court’s members are more elite and homogeneous than were those of fifty years ago. A quick glance at the modern justices’ credentials and geographic backgrounds brings home the point. Moreover, the current Court is presented with thousands more petitions than was the Warren Court. While the number of clerks available to assist with the caseload has grown substantially, today’s high bench issues fewer opinions on the merits. The Warren Court faced criticism for its living constitutionalism and doing politics; today’s Court faces even lower approval ratings and seems to be more politically and ideologically driven and divided than ever.

Changes at the Court naturally invite musing on theories to identify the causes and effects. A simple explanation may be that external politics have affected the inner workings of the institution. Perhaps life at the Court is different in good part because politics outside the Court have become more polarized. The increased diversity on the bench, a decline in consensus, the combative nomination process, the hiring of clerks from ideologically compatible “feeder judges,” and media portrayals of the Court all carry political overtones. The Court issues opinions many of which fundamentally affect the lives of American citizens. It may also be that these same citizens—how they live, how they think, for whom they vote—have fundamentally altered the Court itself.

The Case Against Federalizing Trade Secrecy

Trade secrecy is unique among the major intellectual property (“IP”) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors—including legislators, academics, high-technology firms, and organizations representing IP attorneys and owners—have supported the creation of a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime for IP rights.

This Article engages in the first systematic critique of the claim that federalizing trade secrecy is normatively desirable. Ultimately, it concludes that there are multiple reasons for trade secrecy to remain primarily the province of state law, including preservation of the states’ ability to engage in limited experimentation regarding the scope of trade secret protection and federalization’s potential negative impact on the disclosure of patent-eligible inventions. Finally, it proposes an alternative approach—a modest expansion of federal courts’ jurisdiction over state law trade secret claims—that can help address the issue of trade secret theft without requiring outright federalization.

The Corporate Settlement Mill

From cases involving “robo-signed” mortgages to catastrophic oil spills, the United States legal system increasingly encourages corporate wrongdoers to design and implement their own high-volume settlement programs to compensate thousands of unrepresented victims. These private settlement systems rely on corporate economies of scale to resolve massive disputes as comprehensively as a class action, but entirely outside of the court system. We call these systems “corporate settlement mills.”

Like class action settlements and “no fault” insurance options, corporate settlement mills may ameliorate many of the most commonly criticized features of individualized litigation. They offer redress to people who often cannot afford counsel, handle large volumes of claims quickly and predictably, and reduce court congestion. For those reasons such programs are increasingly required by federal laws, regulatory bodies and as a matter of complex litigation practice. 

But corporate settlement mills also have costs of their own. When sophisticated corporate actors quietly settle large numbers of cases in assembly-line fashion, they threaten transparency, fair dealing, and the rule of law. We argue that this new category of dispute resolution is more dangerous than others because a single, self-interested party — the prospective defendant itself — designs and oversees the entire determination process. Corporate settlement mills thus raise fundamental questions about how far policymakers may go to privatize our public, and historically neutral, system of adjudication.

Drawing lessons from other movements to privatize government, we argue that corporate settlement mills can provide an appropriate alternative to public adjudication as long as they remain answerable to the regulators, courts, and claimants that rely on them. We therefore offer specific suggestions to make them more accountable — including targeted prospective regulation, judicial review, stakeholder participation, and ethical reform. In so doing, we broaden the debate over what constitutes mass litigation, in the hope that lawmakers realize the benefits of large private settlements, without frustrating administrative regulation or the judiciary’s authority to “say what the law is.”

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