Volume 2015, No. 1


Thomas E. Fairchild Lecture: Protecting the Fourth Amendment So We Do Not Sacrifice Freedom for Security

Collins T. Fitzpatrick

After I was invited to speak, I gave a lot of thought to a topic that Judge Fairchild would want discussed. Let me tell you about my thought process and three experiences that brought me to my topic. As a young law student, I watched as Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than follow President Nixon’s order to fire Archibald Cox, the special prosecutor for the Watergate crimes. This was referred to as the Saturday Night Massacre. At that time, some of my fellow law students and I thought that President Nixon might be engaged in a coup d’état. We were wrong, and eventually Nixon resigned in disgrace, but he did resign. The Constitution worked.

As a brand new lawyer, I represented a high school student at an expulsion hearing. The hearing officer was the assistant principal who also was the prosecutor of the charges. At the hearing, he added nine additional infractions to the two for which we had been given notice. The hearing officer/prosecutor introduced no direct testimony, only hearsay as to what others had told him. My client was expelled. The hearing denied my client the due process of law in many ways, but he was reinstated thanks to the decision of a federal judge. The Constitution worked.

Commercialization Awards

Camilla A. Hrdy

The United States has a system of intellectual property (IP) that includes patents for new and nonobvious inventions. Patents are believed to indirectly promote innovation by creating incentives to invent and thereafter commercialize inventions at a faster pace than would otherwise occur. However, theory suggests market failures, such as externalities, transaction costs, and information asymmetries in capital markets, could potentially impede commercialization of inventions that involve significant commercial risk, even when they are patented. In consequence, some scholars propose creating entirely new forms of patents, such as “commercialization patents,” in order to help commercializers market their ideas and more fully appropriate returns from their investments. They argue this would spur socially beneficial entrepreneurial activity and increase the amount of information in the public domain.

This Article argues that—to the extent the alleged commercialization market failures exist—the United States already has a system of commercialization incentives that does not require creating new forms of exclusive rights: direct financing for inventors and entrepreneurs in the early stages of technology development seeking capital to fund research and operations. These are sometimes called “commercialization awards.” They are currently available at the federal level in a limited form, and they are available in over half the states and some cities. Although others have interpreted these awards as inferior public alternatives to private venture capital, this Article reinterprets commercialization awards as an alternative way for government to encourage commercial risk taking in technology development.

Statutory Constraints and Constitutional Decisionmaking

Anthony O’Rourke

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking.

Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. By contrast, in cases where no statute or regulation is at issue, courts are more likely to construct regulatory doctrinal rules. The Article supports this hypothesis by identifying three structural reasons why statutes are likely to have this influence on judicial constitutional decisionmaking. By drawing upon work in legal philosophy and the social sciences, this Article shows that statutes can shape constitutional law in ways that judges fail to reflect upon and usually take for granted.

Today’s Tool for Interpreting Yesterday’s Conviction: Understanding the Mandatory Statutory Sentence Enhancement in Federal Child Pornography Cases

Dana Brudvig

The child pornography problem has become a digital dilemma. As technology improves, the ground allowing offenders to commit these crimes (and remain undetected) becomes more fertile. The number of offenders who are caught and prosecuted is growing but so is the debate over how these offenders should be sentenced.This Comment examines the statutory structure for imposing mandatory minimum sentences in federal child pornography cases. When an offender has a “qualifying” prior conviction, that conviction triggers a recidivist enhancement, or statutory mandatory minimum sentence. As a result of ambiguous statutory language, vague Supreme Court precedent, and variations among state penal codes, federal sentencing judges are struggling to define consistently exactly what qualifies as a “qualifying” conviction in child pornography cases.

The recidivist enhancement—intended to target the most dangerous repeat offenders—is now applied in almost lottery-like fashion. This Comment explains how inconsistent application of the recidivist enhancement is one underlying, but typically overlooked, cause for judicial rebellion against the child pornography sentencing structure.