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Patents’ New Salience

The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grants of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are under-enforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the salience of patents by making patents easier and cheaper to find and enforce. These developments—including private platforms’ adjudication systems and AI-driven patent analytics—profoundly impact how the patent system functions and upend the system’s present dependence on under-enforcement and ignorance. Where most patents could previously be safely disregarded, formerly forgotten patents now matter.

This Article makes four contributions to the literature. First, this Article explores the technology that is rendering patents newly salient and explains how this alters basic assumptions underlying the patent system. Second, this Article demonstrates that although new technology is increasing the number of patents that can be reviewed and enforced, this transformation sometimes decreases the depth of patent analysis. Because it is difficult to draw conclusions about patent scope or validity without in-depth analysis, this omission means that technological review of patents may give patents unmerited influence.

Third, this Article shows a sharp divergence between public policy goals and private use of patents. For several decades, the courts and Congress have been reforming patent policy to decrease the impact of patents to alleviate concerns that patent owners hinder innovation by others. This Article demonstrates, in clear contrast to this goal, an increase in patent salience that is due exclusively to the use of private platforms and technologies. Further, the use of private platforms to find, analyze, and enforce patents creates the risk that choices made by companies and software developers will displace substantive patent law. Finally, this Article suggests policy reform, including ways to improve technology and patents and adjusted approaches to patent doctrine and theory.

Introduction

It is quite likely that you, the reader, have infringed a patent today. There are millions of in-force U.S. patents, and many cover routine, everyday behaviors. Perhaps you used a smartphone, which are covered by thousands of patents, and liability for infringement extends not just to the phone manufacturer but also to the consumer.1 1.Colleen Chien, Predicting Patent Litigation, 90 Tex. L. Rev. 283, 289 (2011); Gaia Bernstein, The Rise of the End User in Patent Litigation, 55 B.C. L. Rev. 1443, 1452–53 (2014).Show More Or you used Wi-Fi, also covered by many patents.2 2.Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 2027 (2007).Show More Alternatively, your infringing act may have been low-tech—playing on a swing3 3.U.S. Patent No. 6,368,227 (filed Nov. 17, 2000).Show More or throwing a stick,4 4.U.S. Patent No. 6,360,693 (filed Dec. 2, 1999).Show More for example. You were probably not aware that you took an action covered by a patent, but this is no defense to patent infringement, which is a strict liability tort and does not take intent into account.5 5.In re Seagate Tech., LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007).Show More

Fortunately, the vast majority of patents are never enforced so the likelihood that you will be sued for infringement is infinitesimally small.6 6.Mark A. Lemley, Rational Ignorance at the Patent Office, 95 Nw. U. L. Rev. 1495, 1497 (2001).Show More The patent system relies heavily on under-enforcement: if most patents were enforced, day-to-day activities would be impossible because the transaction costs required to find and license all relevant patents would be prohibitively high.7 7.Mark A. Lemley, Ignoring Patents, 2008 Mich. St. L. Rev. 19, 25. This is analogous to many other areas of law—torts, criminal law—where the system is characterized by pervasive under-enforcement. See Richard Abel, The Real Tort Crisis—Too Few Claims, 48 Ohio St. L.J. 443, 447 (1987); Richard Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 246 (1980).Show More Patent scholars, policy makers, and the U.S. Patent and Trademark Office (“USPTO” or “Patent Office”) all recognize that many potential problems with the patent system are avoided because patentees rarely enforce patents and infringers generally ignore patents.8 8.See, e.g., Jonathan M. Barnett, Property as Process: How Innovation Markets Select Innovation Regimes, 119 Yale L.J. 384, 392 (2009) (noting that criticisms of the subject-matter expansion of patents as excessive propertization are overblown because most patents are ignored); Tun-Jen Chiang, Fixing Patent Boundaries, 108 Mich. L. Rev. 523, 542 (2010) (suggesting that the notice functions of patent claims work poorly in part because competitors ignore patents); Lemley, supra note 6, at 1510–11 (arguing that low-cost, error-prone patent examination is rational because most patents are ignored).Show More

This Article argues that we are at the beginning of a technological shift that is changing this pattern of under-enforcement and ignorance.9 9.See infra Part II.Show More Because patent policy relies so heavily on ignorance and under-enforcement, the shift towards patent salience has important implications for both doctrinal and theoretical reform.10 10.See infra Part III.Show More

This shift from ignorance and under-enforcement to salience is caused by new technologies that make patents easier to find and use. This Article illustrates the shift with three case studies: First, automated freedom-to-operate algorithms, which are computer programs that take a desired endpoint and design around any relevant patents.11 11.See infra Section II.A.Show More Such a program was used, for instance, to suggest ways to avoid patents on remdesivir (VEKLURY®) in order to increase production during the COVID-19 pandemic.12 12.Sara Szymkuc et al., Computer-Generated “Synthetic Contingency” Plans at Times of Logistics and Supply Problems: Scenarios for Hydroxychloroquine and Remdesivir, 11 Chem. Sci. 6736, 6736 (2020).Show More Second, Amazon’s Utility Patent Neutral Evaluation program, a company-run system to adjudicate claims of patent infringement and remove infringing products from Amazon’s platform.13 13.Ganda Suthivarakom, Welcome to the Era of Fake Products, N.Y. Times: Wirecutter (Feb. 11, 2020), https://www.nytimes.com/wirecutter/blog/amazon-counterfeit-fake-produc‌ts/ [https://perma.cc/B3LJ-UACW].Show More The program provides fast and cheap ($4,000) opportunities for arbitration.14 14.Tammy Terry & Lisa Margonis, Unpacking Amazon’s Patent Infringement Evaluation Process, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1366714/unpacking-amazon-s-patent-infringement-evaluation-process [https://perma.cc/TQ48-KTBY].Show More Third, analytics software that uses machine learning and artificial intelligence to produce patent landscape reports.15 15.Leonidas Aristodemou, Frank Tietze, Nikoletta Athanassopoulou & Tim Minshall, Exploring the Future of Patent Analytics: A Technology Roadmapping Approach, at Abstract (Univ. of Cambridge Ctr. for Tech. Mgmt., Working Paper No. 5, 2017).Show More These reports are detailed accounts of trends in patenting across a field that inform a varied set of decision makers—for example, a report on hydrogen fuel patents designed to help companies find collaborators and make investment decisions.16 16.Chem. Abstracts Serv., Am. Chem. Soc’y, Hydrogen Fuel: Insights into a Growing Market 12 (2019).Show More

With each of these new technologies, patents that would previously never have been enforced, licensed, or likely even read now impact behavioral choices. Because automated freedom-to-operate analyses show users how to avoid all patents in a field, a patent need simply exist to cause a response, even though many such patents would not—indeed could not—be enforced.17 17.See infra Subsection II.A.1.Show More In the case of Amazon’s program, the low cost of the program compared to litigation incentivizes additional enforcement, as does Amazon’s ability to reach beyond traditional jurisdictional limits.18 18.See infra Subsection II.B.1.Show More Further, by providing an easy way to search for products, Amazon’s platform makes it considerably simpler for patentees to find infringers.19 19.See infra Subsection II.B.1.Show More Patent landscape analyses provide information on all patents in a field so that decisions can be made based on a great breadth of patents.20 20.See infra Subsection II.C.1.Show More Patents that were formerly overlooked are now found and integrated into decision-making. Previously ignored, these patents are now impactful.

The technologically driven shift from under-enforcement to salience has created a second fundamental change in how patents are used: the greater impact of patents is accompanied by a move away from deep legal analysis. This shift is most stark with respect to patent validity. Granted patents can be found invalid, and indeed many are.21 21.35 U.S.C. § 282.Show More The mere presence of a patent therefore means little without some evaluation of its validity.22 22.Lemley, supra note 7, at 27.Show More But not all of the case studies highlighted in this Article evaluate validity.23 23.See infra Part II.Show More Amazon’s adjudication system explicitly excludes a validity analysis—a significant difference from litigation, where validity is an issue in almost every case.24 24.Terry & Margonis, supra note 14; Lemley, supra note 6, at 1502 (“Virtually every patent infringement lawsuit includes a claim that the patent is either invalid or unenforceable due to inequitable conduct (or commonly both).”).Show More Some algorithms that run automated freedom-to-operate analyses and create patent landscapes do not account for the possibility of invalidity nor do they discount patents of dubious validity.25 25.See infra Sections II.A, II.C.Show More Rather, each patent is given equal weight in the analysis.26 26.See infra Sections II.A, II.C.Show More Though technology allows analysis of more patents, the analysis can be cursory and blurs the major quality differences between patents.

The trend toward greater patent salience and the changes in how patents are analyzed have substantial implications for patent theory and policy. One notable example is the Patent Office’s “rational ignorance” approach to patent examination.27 27.Lemley, supra note 6, at 1497.Show More Examiners spend relatively little time reviewing each patent and make many mistakes, meaning that many invalid patents are granted.28 28.Id. at 1500.Show More This is justified because more careful examination would be expensive and, if most patents are ignored, these errors have little practical effect.29 29.See infra Section III.B.Show More If, however, more patents impact behavioral choices, the rational ignorance approach breaks down, particularly if new technology does little or no analysis of validity.30 30.See infra Section IV.C.Show More This Article highlights several additional policies and doctrines that are central to the patent system—including the lack of a research exception, methods by which remedies are determined, and the potential for a patent anticommons to block follow-on research—where potentially disastrous consequences are brushed aside on the grounds that patents are ignored.31 31.See infra Section IV.C.Show More

Another key consequence of patents’ new salience is that choices about patent impact are increasingly privatized, which creates concerns about the influence of private platforms and their divergence from public goals. First, the technological shift highlighted in this Article predominantly involves private platforms.32 32.See infra Part II.Show More When private platforms design algorithms and choose training data for patent analysis, they inevitably make choices about how to interpret and prioritize substantive law.33 33.See infra Section III.D.Show More To the extent that algorithmic output influences decisions and is not subject to judicial review, it raises the risk that private choices about enforcement mechanisms or platform design will displace substantive law.34 34.See infra Section III.D.Show More While these privatization concerns have been well-aired in the context of copyright law and other fields, the concerns apply with equal force to patent law.35 35.E.g., Matthew Sag, Internet Safe Harbors and the Transformation of Copyright Law, 93 Notre Dame L. Rev. 499, 499 (2017).Show More Moreover, to the extent that substantive patent law is woven into private designs, it is often in a black box without transparency about how and when patent law is incorporated into the analysis.36 36.See infra Section III.D. More specifically, technologies that rely on AI do not always disclose the data used to train the AI, making it difficult to predict bias in output. See, e.g., Shlomit Yanisky-Ravid & Sean K. Hallisey, “Equality and Privacy by Design”: A New Model of Artificial Intelligence Data Transparency via Auditing, Certification, and Safe Harbor Regimes, 46 Fordham Urb. L.J. 428, 474 (2019) (recommending increased disclosure of data inputs in order to prevent discrimination).Show More

Further, the increasing patent impact documented herein is in striking contrast to a countervailing trend in congressional and judicial action which is towards making patents less impactful.37 37.Paul Gugliuzza, Quick Decisions in Patent Cases, 106 Geo. L.J. 619, 622 (2018); Jonathan Masur, Patent Inflation, 121 Yale L.J. 470, 510 (2011).Show More In recent years, Congress and the courts have increased the difficulty of obtaining and enforcing patents, meaning that third parties can more safely ignore patents—a deliberate policy intended to alleviate some of the roadblocks that patents can pose to innovation and the economy.38 38.Gugliuzza, supra note 37, at 624.Show More This Article argues that private actors, in making patents more salient, are moving patent law away from values espoused by public actors.39 39.See infra Section III.C.Show More

Despite these challenges, technological developments in patent law are not inherently negative. Software’s ability to draw information from millions of patents is exciting and may improve patents’ ability to fulfill their disclosure function.40 40.One way in which patents incentivize innovation is by providing information about cutting-edge inventions to the public. E.g., Sean B. Seymore, The Teaching Function of Patents, 85 Notre Dame L. Rev. 621, 622 (2010).Show More It is important for e-commerce platforms to have some form of patent enforcement mechanism.41 41.Terry & Margonis, supra note 14.Show More But these technologies can be improved. This Article suggests avenues for using artificial intelligence (“AI”) to expand in-depth analysis of patents and also highlights where AI is unlikely to work.42 42.See infra Section IV.A.Show More The Article additionally recommends strategies to alter patents to better interface with AI.43 43.See infra Section IV.B.Show More And, doctrinally, the Article suggests reviewing the implications of patent law doctrine and theories such as rational ignorance, research exceptions, the application of damages and other remedies, and reliance on under-enforcement—all areas that may be impacted by the new salience of patents.44 44.See infra Section IV.C.Show More

The Article proceeds as follows. Part I explores why patents have historically been ignored and, for those few patents that are not, why in-depth analysis is essential to understand the enforceability of any patent. Part II provides three case studies of technologies that render patents newly salient. Part III turns to the implications of this shift towards technologically-driven patent impact (Section III.A). It further discusses the consequences of platforms that avoid in-depth patent analysis (Section III.B), the divergence between the public trend towards easier invalidation and the private trend towards easier enforcement (Section III.C), and the displacement of substantive law by private choices (Section III.D). Part IV suggests policy reform.

  1.  Colleen Chien, Predicting Patent Litigation, 90 Tex. L. Rev. 283, 289 (2011); Gaia Bernstein, The Rise of the End User in Patent Litigation, 55 B.C. L. Rev. 1443, 1452–53 (2014). ↑
  2.  Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 2027 (2007). ↑
  3.  U.S. Patent No. 6,368,227 (filed Nov. 17, 2000). ↑
  4.  U.S. Patent No. 6,360,693 (filed Dec. 2, 1999). ↑
  5.  In re Seagate Tech., LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007). ↑
  6.  Mark A. Lemley, Rational Ignorance at the Patent Office, 95 Nw. U. L. Rev. 1495, 1497 (2001). ↑
  7.  Mark A. Lemley, Ignoring Patents, 2008 Mich. St. L. Rev. 19, 25. This is analogous to many other areas of law—torts, criminal law—where the system is characterized by pervasive under-enforcement. See Richard Abel, The Real Tort Crisis—Too Few Claims, 48 Ohio St. L.J. 443, 447 (1987); Richard Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 246 (1980). ↑
  8.  See, e.g., Jonathan M. Barnett, Property as Process: How Innovation Markets Select Innovation Regimes, 119 Yale L.J. 384, 392 (2009) (noting that criticisms of the subject-matter expansion of patents as excessive propertization are overblown because most patents are ignored); Tun-Jen Chiang, Fixing Patent Boundaries, 108 Mich. L. Rev. 523, 542 (2010) (suggesting that the notice functions of patent claims work poorly in part because competitors ignore patents); Lemley, supra note 6, at 1510–11 (arguing that low-cost, error-prone patent examination is rational because most patents are ignored). ↑
  9.  See infra Part II. ↑
  10.  See infra Part III. ↑
  11.  See infra Section II.A. ↑
  12.  Sara Szymkuc et al., Computer-Generated “Synthetic Contingency” Plans at Times of Logistics and Supply Problems: Scenarios for Hydroxychloroquine and Remdesivir, 11 Chem. Sci. 6736, 6736 (2020). ↑
  13.  Ganda Suthivarakom, Welcome to the Era of Fake Products, N.Y. Times: Wirecutter (Feb. 11, 2020), https://www.nytimes.com/wirecutter/blog/amazon-counterfeit-fake-produc‌ts/ [https://perma.cc/B3LJ-UACW]. ↑
  14.  Tammy Terry & Lisa Margonis, Unpacking Amazon’s Patent Infringement Evaluation Process, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1366714/unpacking-amazon-s-patent-infringement-evaluation-process [https://perma.cc/TQ48-KTBY]. ↑
  15.  Leonidas Aristodemou, Frank Tietze, Nikoletta Athanassopoulou & Tim Minshall, Exploring the Future of Patent Analytics: A Technology Roadmapping Approach, at Abstract (Univ. of Cambridge Ctr. for Tech. Mgmt., Working Paper No. 5, 2017). ↑
  16.  Chem. Abstracts Serv., Am. Chem. Soc’y, Hydrogen Fuel: Insights into a Growing Market 12 (2019). ↑
  17.  See infra Subsection II.A.1. ↑
  18.  See infra Subsection II.B.1. ↑
  19.  See infra Subsection II.B.1. ↑
  20.  See infra Subsection II.C.1. ↑
  21.  35 U.S.C. § 282. ↑
  22.  Lemley, supra note 7, at 27. ↑
  23.  See infra Part II. ↑
  24.  Terry & Margonis, supra note 14; Lemley, supra note 6, at 1502 (“Virtually every patent infringement lawsuit includes a claim that the patent is either invalid or unenforceable due to inequitable conduct (or commonly both).”). ↑
  25.  See infra Sections II.A, II.C. ↑
  26.  See infra Sections II.A, II.C. ↑
  27.  Lemley, supra note 6, at 1497. ↑
  28.  Id. at 1500. ↑
  29.  See infra Section III.B. ↑
  30.  See infra Section IV.C. ↑
  31.  See infra Section IV.C. ↑
  32.  See infra Part II. ↑
  33.  See infra Section III.D. ↑
  34.  See infra Section III.D. ↑
  35.  E.g., Matthew Sag, Internet Safe Harbors and the Transformation of Copyright Law, 93 Notre Dame L. Rev. 499, 499 (2017). ↑
  36.  See infra Section III.D. More specifically, technologies that rely on AI do not always disclose the data used to train the AI, making it difficult to predict bias in output. See, e.g., Shlomit Yanisky-Ravid & Sean K. Hallisey, “Equality and Privacy by Design”: A New Model of Artificial Intelligence Data Transparency via Auditing, Certification, and Safe Harbor Regimes, 46 Fordham Urb. L.J. 428, 474 (2019) (recommending increased disclosure of data inputs in order to prevent discrimination). ↑
  37.  Paul Gugliuzza, Quick Decisions in Patent Cases, 106 Geo. L.J. 619, 622 (2018); Jonathan Masur, Patent Inflation, 121 Yale L.J. 470, 510 (2011). ↑
  38.  Gugliuzza, supra note 37, at 624. ↑
  39.  See infra Section III.C. ↑
  40.  One way in which patents incentivize innovation is by providing information about cutting-edge inventions to the public. E.g., Sean B. Seymore, The Teaching Function of Patents, 85 Notre Dame L. Rev. 621, 622 (2010). ↑
  41.  Terry & Margonis, supra note 14. ↑
  42.  See infra Section IV.A. ↑
  43.  See infra Section IV.B. ↑

  44.  See infra Section IV.C. ↑

Judicial Review in Times of Emergency: From The Founding Through The Covid-19 Pandemic

[O]f course, Korematsu was wrong . . . . But you are kidding yourself if you think the same thing will not happen again.

– Justice Antonin Scalia1 1.Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND].Show More

Introduction

In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government brought the accused before a tribunal composed of nine military officers at the Old Arsenal Penitentiary in Washington, D.C.2 2.Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings).Show More The President’s order empowered the commission to set its own rules of procedure.3 3.Id. at 175.Show More By the ensuing rules, a majority vote of the officers could sustain a guilty verdict, a two-thirds majority vote could sustain a death sentence, and the only avenue for appeal was to seek a pardon from the President.4 4.Id.Show More

Appearing for the prosecution, Representative John Bingham—who one year later would serve as primary drafter of the Fourteenth Amendment—argued that the due process guarantee set forth in the Fifth Amendment to the Constitution was “only the law of peace, not of war.”5 5.Id. at 175–76.Show More “[I]n war,” he asserted, “it must be, and is, to a great extent, inoperative and disregarded.”6 6.Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war).Show More

Counsel for the accused conspirators argued that they deserved a jury trial in a proper court of law. Specifically, Maryland Senator Reverdy Johnson argued that fundamental liberties are “more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other.”7 7.Magliocca, supra note 6, at 94.Show More It followed, in his view, that only members of the United States military could be tried by a military commission. Given that the courts were open and operating in the District, he contended, the defendants were entitled to a jury trial with the full panoply of procedural protections set forth in the Bill of Rights.8 8.Id.Show More

But Bingham was not finished. Bingham also cited as legal sanction for the military trials President Lincoln’s earlier declarations of martial law and suspension of habeas corpus that had followed under legislation enacted by the United States Congress in 1863.9 9.Id. at 95–96.Show More More generally, during wartime, he contended, “the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation.”10 10.Id. at 96.Show More

As every armchair Civil War historian knows, Bingham’s arguments prevailed on that occasion. The military commission proceeded to convict all eight defendants on various conspiracy-related charges,11 11.These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99.Show More sentencing four to death, three to life terms, and one to a six-year prison term.12 12.Id. at 99–102.Show More Days later, on July 7, 1865, the government hanged the four given capital sentences.13 13.Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012).Show More This happened despite the filing by one of the condemned, Mary Surratt, of an overnight habeas petition reiterating Senator Johnson’s arguments, which was thwarted by the personal intervention of President Johnson.14 14.Tyler, supra note 2, at 177.Show More

Just one year later and with the Civil War effectively over, in Ex parte Milligan, the Supreme Court of the United States rejected the notion that military courts could try civilians in states “where the courts are open and their process unobstructed.”15 15.Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866).Show More In so doing, the Court rebuffed the government’s argument that the Bill of Rights constituted “peace provisions” that “like all other conventional and legislative laws and enactments, are silent amidst arms, and when the safety of the people becomes the supreme law.”16 16.Id. at 20 (replicating government’s argument).Show More Instead, Milligan championed the following proposition: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”17 17.Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018).Show More

It is an inspiring passage. But the track record over the course of American history seems to suggest otherwise. More often than not, Bingham’s arguments have prevailed when courts have reviewed government actions taken during times of war and emergency. Whether the courts expressly say the Constitution means something different in such times, or say the political branches deserve extra deference during such emergencies, or say that during such times the judiciary should stay its hand entirely, the result has been the same: For all practical purposes, the United States Constitution has meant something different in times of emergency. Whether deferring to President Lincoln’s blockade at the start of the Civil War,18 18.The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863).Show More a state’s suspension of creditors’ remedies during the Great Depression,19 19.Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934).Show More or President Roosevelt’s evacuation and mass incarceration of Japanese Americans in the West during World War II,20 20.See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944).Show More the Supreme Court has regularly permitted the political branches wide discretion to manage national emergencies, even in ways that would be viewed as flouting the Constitution during peacetime. All of this has been exacerbated, moreover, by the ever-expanding conceptions of war and emergency more generally.21 21.See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies.Show More

It follows that studying emergencies has the potential to tell us something both about the judicial role and the Constitution itself. This is because such a study implicates a range of questions, including whether the Founding document, despite expressly accounting for the potential for war and emergency, is a compact the meaning of which turns on the state of national security.22 22.There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus).Show More That is, was Bingham correct that it means something different in times of crisis versus when the country is at peace? And what of the judicial role? Does it differ depending on such circumstances?

Although Bingham’s arguments most often have prevailed historically, there have been a handful of Supreme Court decisions, like Milligan, pushing back on the idea that the political branches deserve extensive deference to manage crises. Consider, in addition to Milligan, Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), in which the Supreme Court told President Truman that he could not seize the country’s steel mills that were about to strike during the height of the Korean War.23 23.Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952).Show More The result is unsettled terrain, with many of the larger questions about the Constitution and judicial role in times of emergency having never been fully resolved.24 24.As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67.Show More Instead, well over two hundred years into our constitutional experiment, debates rage on as to the proper roles of the judiciary and our Founding document during such times.25 25.For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993).Show More

With the COVID-19 pandemic and the extensive litigation it has spurred targeting regulation of conduct deemed dangerous to public health, there is a new chapter to add to the mix. And it is a very interesting one. In several cases, an emerging Supreme Court majority has applied increasingly rigorous scrutiny to government regulations predicated upon public health, most notably where such rules have intersected with the exercise of religion, but also in the areas of property rights and separation of powers. It has done so, moreover, often in the context of its so-called “shadow docket”26 26.I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court).Show More—its emergency application docket that fast-tracks cases to the Court without the benefit of full briefing and argument. This being said, a Court majority has also deferred to government decisions made in the context of the pandemic in several other contexts, including when reviewing abortion and prison policies.

All the same, the Court’s propensity to be so active of late invites a revival of the debates over the role of the Constitution in times of emergency and the attendant role of the judiciary during the same. On one view, the Constitution means something different during times of emergency, insofar as the political branches effectively enjoy broader discretion to manage the country through such crises. On another view—and one that has controlled in some recent COVID-19-era decisions by the Supreme Court—any emergency context should not factor into how the Court assesses the constitutionality of government action. An example of this view may be found in Justice Gorsuch’s recent opinion voting to override a governor’s order setting capacity restrictions on religious worship to halt the spread of COVID-19.27 27.S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021).Show More There, he wrote, “[e]ven in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.”28 28.Id. at 718 (statement of Gorsuch, J.).Show More

This Article explores the role of judicial review during times of emergency, spanning American history up to and including the Court’s recent orders made in the context of the pandemic. It also surveys debates on either side of the competing visions of the Constitution and the judicial role during emergencies. Finally, the Article suggests that even if one has significant concerns over the processes by which the current Supreme Court has decided some of the recent pandemic cases and/or the underlying merits of the decisions rendered by the Court, there is much to welcome in recent opinions positing that emergencies do not automatically diminish the individual rights protections in the Constitution or, for that matter, the judicial role. All the same, the Article concludes by critiquing the inconsistency in the Court’s approach to its role during the pandemic. Further, it suggests that it is not so much a desire to revive the judicial role in times of emergency that is driving the searching review we have witnessed in some of the pandemic cases, but instead the proverbial tail that wags the dog. In short, many of the Justices seem far more driven by the particular merits of the cases than a consistent approach to judicial review in times of emergency. A better approach would transcend the merits of any given context to embrace a model of judicial review that remains consistent regardless of the underlying merits and, most of all, the existence—or not—of any kind of emergency.

  1.  Justice Antonin Scalia, Statement at University of Hawaii School of Law (Feb. 3, 2014), quoted in Debra Cassens Weiss, Scalia: Korematsu Was Wrong, but ‘You Are Kidding Yourself’ If You Think It Won’t Happen Again, A.B.A. J. (Feb. 4, 2014, 1:05 PM), https://www.abajournal.com/news/article/scalia_korematsu_was_wrong_but_you_are_kidding_yourself_if_you_think_it_won [https://perma.cc/D6YQ-CRND]. ↑
  2.  Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay 174–75 (2017) (detailing procedures and proceedings). ↑
  3.  Id. at 175. ↑
  4.  Id. ↑
  5.  Id. at 175–76. ↑
  6.  Id. at 176; see also Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment 89–98 (2013) (detailing the arguments of Bingham and others in relation to the applicability of the U.S. Constitution in times of war). ↑
  7.  Magliocca, supra note 6, at 94. ↑
  8.  Id. ↑
  9.  Id. at 95–96. ↑
  10.  Id. at 96. ↑
  11.  These included the charge of traitorously conspiring to commit murder, a crime not codified in federal law but one that had been announced by the military officers for the case at hand. Id. at 98–99. ↑
  12.  Id. at 99–102. ↑
  13.  Frank J. Williams & Nicole J. Benjamin, Military Trials of Terrorists: From the Lincoln Conspirators to the Guantanamo Inmates, 39 N. Ky. L. Rev. 609, 629 (2012). ↑
  14.  Tyler, supra note 2, at 177. ↑
  15.  Ex parte Milligan, 71 U.S. (4 Wall.) 2, 31–32, 121 (1866). ↑
  16.  Id. at 20 (replicating government’s argument). ↑
  17.  Id. at 120–21. For more on Milligan and the trial of the Lincoln conspirators, see Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 Colum. L. Rev. 323, 394–457 (2018). ↑
  18.  The Prize Cases, 67 U.S. (2 Black) 635, 670–71 (1863). ↑
  19.  Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 416, 447–48 (1934). ↑
  20.  See, e.g., Hirabayashi v. United States, 320 U.S. 81, 83, 85–89, 104–05 (1943); Korematsu v. United States, 323 U.S. 214, 215–18 (1944). ↑
  21.  See, e.g., Mary L. Dudziak, War Time: An Idea, Its History, Its Consequences 5, 136 (2012) (exploring how the concept of wartime has expanded dramatically over the course of American history, particularly in the hands of politicians); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699, 737 (2006) (exploring similar trends). This Article sometimes refers to “wars and emergencies”; to be clear, however, this Article conceives of wars as one subset of emergencies. ↑
  22.  There are many wartime powers noted in the Constitution. See, e.g., U.S. Const. art. I, § 8, cl. 11 (empowering Congress “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”); id. cls. 12–14 (empowering Congress “[t]o raise and support Armies,” “[t]o provide and maintain a Navy,” and “[t]o make Rules for the Government and Regulation of the land and naval Forces”); id. cl. 15 (empowering Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”); id. § 9, cl. 2 (referencing the power to suspend habeas corpus). ↑
  23.  Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 588–89 (1952). ↑
  24.  As explored below, Milligan and other examples of Supreme Court decisions that do not defer to the political branches have often come in the waning days of—or even after—the relevant emergency. See infra text accompanying notes 60–67. ↑
  25.  For a small selection of some of the relevant literature on point, see, e.g., Saikrishna Bangalore Prakash, The Sweeping Domestic War Powers of Congress, 113 Mich. L. Rev. 1337 (2015); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 Minn. L. Rev. 1789 (2010); Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 Ga. L. Rev. 699 (2006); Bruce Ackerman, The Emergency Constitution, 113 Yale L.J. 1029 (2004); Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 Yale L.J. 1801 (2004); Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. Chi. L. Rev. 691 (2004); Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993). ↑
  26.  I believe the term originated with William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015). The rise of orders in such cases has been explored in detail by Stephen Vladeck. See, e.g., Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 152–53 (2019). There is a debate over the appropriateness of the term “shadow docket,” but I will employ it here given that these are cases often without full briefing and argument in which, as the cases discussed below in Part II demonstrate, the Court has sometimes rendered highly consequential rulings that are not always clearly supported by existing precedent. This Article puts to the side the debate over whether the Court should be so active in this posture and whether it should be establishing new substantive law in these cases. Nonetheless, I tend to join camp with those who are critical of the Court on both fronts. See, e.g., id. at 156–60; see also Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (forthcoming 2023) (arguing that the Court’s use of the shadow docket is fundamentally inconsistent with its role in the judicial process and risks serious long-term institutional harm to the Court). ↑
  27.  S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021). ↑

  28.  Id. at 718 (statement of Gorsuch, J.). ↑

The Animal Crushing Offense Loophole

The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse. Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing”—i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures. But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines. The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law. Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct. As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.

This Essay is the first to identify what it terms the “animal crushing offense loophole.” It offers three potential solutions on the eve of the Commission’s annual amendment cycle: the creation of a new Animal Crushing Guideline, the express recognition of animal victimhood, and the use of a set of sentencing factors that distinguish among animal crushing defendants.

Introduction

In a 1999 hearing before the House Judiciary Committee, members of Congress were introduced to the growing interstate market in animal “crush videos.”1 1.H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225.Show More Animal crush videos glamorize small creatures being tortured to death in brutal fashion, often for the viewer’s sexual gratification.2 2.Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX].Show More At the time, thousands of crush videos were available for purchase in some of the darkest corners of the internet.3 3.H.R. Rep. No. 111-549, at 2.Show More One such video, described in graphic detail by the Humane Society of the United States in a 2010 amicus brief, shows a speckled kitten, locked to the ground, shrieking in pain as a woman slams her high-heeled stiletto into its eye socket.4 4.Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769).Show More Viewers hear the kitten’s skull shatter.5 5.Id.Show More Yet the woman keeps stomping. By the time the video ends, all that is left of the kitten is a “moist pile of blood-soaked hair and bone.”6 6.Id.Show More

Following that initial hearing, Congress passed a series of laws that criminalized the creation and distribution of animal crush videos. But those laws contained a crucial exception: the actual conduct depicted in animal crush videos was not subject to a federal penalty. Not until 2019 was the act of “animal crushing”—which is a term of art encompassing the most extreme forms of animal cruelty—prohibited under federal law. The United States Sentencing Commission, however, has yet to promulgate an amendment to the Federal Sentencing Guidelines7 7.U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021).Show More (“Guidelines” or “U.S.S.G.”) that accounts for this change. Today, courts are sentencing animal crushing defendants using guideline calculations that do not reflect the depravity of extreme animal abuse. That gap in the Guidelines—which this Essay terms the “animal crushing offense loophole”—presents a serious threat to the administration of justice in cases involving some of the most depraved and sadistic forms of human behavior.

This Essay is the first to identify and offer solutions to this glaring gap in the Federal Sentencing Guidelines. It calls the problem to the attention of the United States Sentencing Commission as it prepares to enter a new amendment cycle in late spring 2023. This Essay also provides guidance to judges, prosecutors, probation officers, and defense attorneys on how to approach sentencing in animal crushing cases. It proceeds in four parts. Part I briefly addresses the history of the federal anti-animal cruelty statute, 18 U.S.C. § 48. Part II explains the animal crushing offense loophole and how it leads to dramatically insufficient recommended guideline sentences for defendants convicted of animal crushing. Part III suggests three reforms that would help courts fashion a sentence that adequately accounts for the cruelty of animal crushing offenses. The Commission could create a new Animal Crushing Guideline; alternatively, it could amend the Guidelines to recognize animal victimhood. In addition, sentencing judges can utilize a set of factors to better distinguish among animal crushing defendants. This Essay concludes by assessing the likelihood of reform.

  1.  H.R. Rep. No. 111-549, at 2 (2010), as reprinted in 2010 U.S.C.C.A.N. 1224, 1225. ↑
  2.  Sirin Kale, ‘Sometimes They’re Boiled Alive’: Inside the Abusive Animal Crush Industry, Vice (Nov. 3, 2016, 9:50 AM), https://www.vice.com/en/article/d3gv7q/inside-abusive-animal-crush-fetish-industry [https://perma.cc/63P9-MRJX]. ↑
  3.  H.R. Rep. No. 111-549, at 2. ↑
  4.  Brief for the Humane Society of the United States as Amicus Curiae Supporting Petitioner at 2, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769). ↑
  5.  Id. ↑
  6.  Id. ↑
  7. U.S. Sent’g Guidelines Manual (U.S. Sent’g Comm’n 2021). ↑
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