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Volume 90.8
Undefined "Ground": Form or Substance in PTO Estoppel
Tanvi Antoo
B.S. 2020, Santa Clara University; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professor Jonathan Masur and the editors and staff of the University of Chicago Law Review for their thoughtful edits and insight.

This Comment seeks to resolve a dispute among district courts on how to interpret the term “ground” in 35 U.S.C. § 315(e)(2), the America Invents Act’s (AIA) estoppel provision. The question of whether a party that asserts a printed publication or patent in an inter partes review (IPR) proceeding is estopped from asserting real-world prior art, such as a device, in a later civil action under § 315(e)(2) has resulted in a district court split. Some courts have construed the estoppel provision narrowly, reasoning that because a physical object like a device is not something that could have been raised during IPR, estoppel cannot apply. Under this interpretation, “ground” is interpreted to mean a piece of evidence. Because physical products are not the same type of evidence offered during IPR, litigants are not estopped from using them in later civil actions. On the other side of this, courts have determined that estoppel can apply, but does not in situations where the physical object being raised is either “superior and separate” or presents a “substantive difference” to the paper prior art raised in IPR. Here, “ground” is interpreted to mean argument, such that estoppel applies when the device offers no arguments other than those already put forth during IPR—in other words, when litigation would be duplicative. The resolution to this question carries significant consequences for the cost, efficiency, and institutional division of labor of the patent system. This Comment argues that the AIA’s text and purpose support adopting the substantive difference approach. This approach strikes a workable balance in focusing on the legal arguments to ensure that litigants are not unduly relitigating the same arguments already decided by the Patent Trial and Appeal Board (PTAB). The substantive difference approach also advances the AIA’s purpose in offering IPR as a cheaper, faster alternative to district court litigation. It also promotes a reasonable division of responsibilities between the PTAB and district courts. Overall, as this Comment explains, this interpretation best aligns with the patent system’s goals.

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Volume 90.8
Decarcerating Immigrant Detainee Medical Care: A Path to Doctrinal Redemption
Kieran Dosanjh
B.A. 2019, University of California, San Diego; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professor Nicole Hallett and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight. I would also like to credit Dr. Christine Montross, whose work sheds a much-needed interdisciplinary light on this topic. Finally, I would like to acknowledge the countless immigrants with whom I grew up in central California. You remain a constant source of strength in our community.

Government detention is a quid pro quo: the government may deprive persons of their physical liberty, but in exchange, it owes them a level of care. The critical question is, how much care does the Constitution require the government to provide? In a series of federal judicial decisions (collectively, the detainee medical care doctrine), courts have found that the Constitution requires different standards of care for different classes of government detainees. These courts’ standard of care for immigrant detainees is erroneous. Modern U.S. immigration detention’s descriptive resemblance to criminal confinement has prompted courts to (wrongly) find that immigrant detainees are constitutionally entitled to the same standard of medical care as pretrial criminal detainees. Yet, the constitutionally civil status of immigration detention distinguishes it from pretrial criminal detention in doctrinally salient ways such that the Constitution entitles immigrant detainees to a higher standard of medical care. This Comment charts a path to conforming the immigration detention jurisprudence within the doctrine to what the Constitution requires by answering this question of law, which was recently unsettled by the Supreme Court’s 2015 decision in Kingsley v. Hendrickson and the Fourth Circuit’s 2021 decision in Doe 4 ex rel. Lopez v. Shenandoah Valley Juvenile Center Commission: What adjudicatory standard should govern immigrant detainees’ claims of constitutionally inadequate medical care? After devising a doctrinal test and applying it to immigrant detainees, this Comment concludes that the Constitution entitles them to “medical professional judgment”: medical care must not substantially depart from accepted medical standards.

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Volume 90.8
Searching for Standing: Are Improper Acquisition or Threatened Misappropriation of Trade Secrets Cognizable Injuries Sufficient for Article III Standing?
Josh J. Leopold
B.A. 2019, Washington University in St. Louis; J.D. Candidate 2024, The University of Chicago Law School.

I thank Professor Lior Strahilevitz for his guidance and thoughtful feedback on an earlier draft. I am also grateful to Dylan Salzman, Kate Gehling, Jaston Burri, Amanda Williams, Jorge Pereira, and the University of Chicago Law Review editors for their advice and insight.

Trade secret litigation is on the rise. Meanwhile, modern standing cases have forced courts and commentators to reevaluate what sorts of legal injuries bring factual injuries with them, such that federal courts can adjudicate them as a “case” or “controversy” under Article III of the Constitution. This Comment studies the intersection of Article III standing and federal trade secret law. It is the first piece to provide a taxonomy of trade secret violations and factual injuries in the shadow of standing doctrine’s demand for an injury-in-fact. This Comment submits a bold yet plausible claim: Article III standing should be in question for certain violations of the Defend Trade Secrets Act (DTSA)—improper acquisition and threatened misappropriation. Challenging standing in these cases will ensure that federal courts remain within their constitutional mandate. Moreover, challenging standing in certain trade secret cases will help encourage employee mobility in the marketplace. While this Comment urges courts to assure themselves of Article III standing in these cases, it acknowledges that plaintiffs will have forceful responses to standing arguments made against them. A back-and-forth rally between plaintiffs and defendants will help courts reach the correct results, as the adversarial process intends. At bottom, this piece challenges what some seem to take as a given: that trade secret plaintiffs who plausibly allege a violation of the DTSA have necessarily suffered an injury-in-fact.

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Volume 90.8
Seizure or Due Process? Section 1983 Enforcement Against Pretrial Detention Caused by Fabricated Evidence
Jorge Pereira
A.B. 2021, Princeton University; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professor Sharon Fairley for her helpful advice and insight, as well as the phenomenal University of Chicago Law Review editorial team.

Can an individual who was held in pretrial detention but not criminally convicted as a result of fabricated evidence raise a due process claim under 42 U.S.C. § 1983? The answer is unclear. In 2017, the Supreme Court in Manuel v. City of Joliet held that claims for unlawful pretrial detention are governed by the Fourth Amendment. Since then, the Seventh Circuit has asserted that the Fourth Amendment is the only source of redress under § 1983 for wrongful pretrial detention caused by fabricated evidence. By contrast, several circuits have opined that Manuel does not foreclose the possibility that individuals held in pretrial detention due to fabricated evidence may raise § 1983 Fourteenth Amendment claims for due process injuries caused by fabricated evidence. These claims would be in addition to § 1983 Fourth Amendment claims for wrongful pretrial detention. A circuit split has thus emerged regarding what § 1983 claims may be brought by plaintiffs who were placed in pretrial detention because of fabricated evidence. This Comment argues that pretrial detention that is caused by fabricated evidence implicates both the Fourth Amendment and Fourteenth Amendment. Accordingly, injured parties should be entitled to raise claims under § 1983 based on violations of either (or both) of these amendments.

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Volume 90.8
Closing a Loophole in Exchange Act Enforcement: A Framework for Assessing the Enforceability of Delaware Forum Selection Bylaws in the Context of Derivative § 14(a) Claims
Amanda K. Williams
B.A. 2018, University of Virginia; M.P.P. 2019, University of Virginia; J.D. Candidate 2024, The University of Chicago Law School.

Over the past decade, a growing number of Delaware corporations have adopted forum selection bylaws. These bylaws often require that all derivative claims against a company’s officers or directors be resolved in Delaware state courts. But what happens when a shareholder brings a derivative claim that Delaware courts do not have jurisdiction to adjudicate? This issue arises when Delaware forum selection bylaws are applied to derivative claims arising under § 14(a) of the Securities and Exchange Act of 1934, because the Exchange Act instructs that only federal courts may resolve such claims. In this context, Delaware corporations may seek to exploit forum selection bylaws as a jurisdictional loophole to bar shareholders from pursuing derivative Exchange Act claims in any court. In effect, the bylaws enable defendant corporations to designate a substitute referee—Delaware courts—that they already know is disqualified from adjudicating Exchange Act claims, which inevitably forfeits the game in their favor. Circuits have split on whether to enforce Delaware forum selection bylaws when they are applied to derivative § 14(a) claims. This Comment proposes an alternative approach to resolve the circuit split. The proposed approach revives the historically underutilized “unreasonableness exception” to enforceability, which the Supreme Court established in M/S Bremen v. Zapata Off-Shore Co. This Comment contends that Bremen’s unreasonableness exception must be understood as a context-specific inquiry. It should be applied liberally to forum selection clauses contained in corporate bylaws, and as applied to derivative Exchange Act claims. Under this proposed approach, Delaware forum selection bylaws are unenforceable as applied to derivative § 14(a) claims.

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Volume 90.7
Achieving Appropriate Relief for Religious Freedom Violations in Prisons After Tanzin
Bethany Ao
B.S. 2017, Northwestern University; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank the editors and staff of the University of Chicago Law Review and the attorneys at the ACLU of North Carolina for their thoughtful advice and insight. I would also like to thank my parents, partner, and friends for their unwavering support.

In the 1990s, Congress passed the Prisoner Litigation Reform Act (PLRA) to decrease frivolous prisoner litigation. One PLRA provision that was aimed at accomplishing that goal is § 1997e(e), which states that no prisoner can bring a federal civil action for mental or emotional injury without a showing of an accompanying physical injury. This provision has created a circuit split over whether prisoners who suffer a violation of their Free Exercise rights under the First Amendment can recover compensatory damages. If the split is left unresolved, it will lead to a troubling lack of uniformity in the law for federal prisoners, who are a group of uniquely vulnerable litigants given their lack of access to resources. This Comment argues that to achieve uniformity and avoid the complications of the First Amendment circuit split, federal prisoners should bring their claims under the Religious Freedom Restoration Act (RFRA) instead. In Tanzin v. Tanvir, the Supreme Court explicitly ruled that monetary damages are available as a form of “appropriate relief” under RFRA. This Comment asserts that “appropriate relief” should include compensatory damages for prisoners for a number of reasons. These reasons include RFRA’s “super statute” status, the imperfect fit of other noncompensatory remedies such as injunctive relief and nominal damages when religious freedom rights are violated, the failure to serve PLRA’s stated purpose of decreasing frivolous prisoner litigation by barring recovery of compensatory damages, and consistency with the Supreme Court’s separation of powers doctrine. Therefore, federal prisoners should be able to recover compensatory damages under RFRA when their religious freedom rights are violated.

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Volume 90.7
New Life for the Unlawful Inclosures Act: Immunizing Corner-Crossers from State Trespass Actions
Burke Snowden
B.A. 2020, Yale University; J.D. Candidate 2024, The University of Chicago Law School.

Thank you to Professor Lee Anne Fennell for graciously providing feedback and helping me develop my ideas. Thank you to the University of Chicago Law Review editors and staff for the tireless editing support.

In many parts of the rural western United States, the land is divided into rectangular parcels that alternate between private and public ownership, so as to resemble a checkerboard. Some of those public parcels are “corner-locked,” meaning that they meet other public parcels only at a corner. It is technically not possible to access corner-locked parcels without at least briefly hovering over a private parcel, which constitutes trespass on the private parcel under the ad coelum doctrine. Since the COVID-19 pandemic has increased demand for outdoor tourism, more people have been endeavoring to reach the public parcels by “corner-crossing” from one public parcel to the other. Private landowners have taken issue with the intrusions over their land that result. The corner-crossing is a trespass by the letter of state trespass law, but corner-crossers argue that the Unlawful Inclosures Act of 1885 immunizes them from trespass liability. This Comment explores the extent to which the Unlawful Inclosures Act does so. It examines the relevant case law and concludes, based on the text and historical backdrop of the Act, that landowners may not sue corner-crossers for the momentary trespasses they effect. It argues that this reading follows from the open-range doctrine in effect in the rural West when the Act was passed.

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Volume 90.7
When Federal Courts Remediate Intrastate Redistricting Stalemates: Parsing What Is Owed Deference When State Policies Conflict
Erin Yonchak
B.A. 2016, The Ohio State University; J.D. Candidate 2024, The University of Chicago Law School.

Special thanks to Professor Bridget Fahey and the wonderful editors and staff of the University of Chicago Law Review for their thoughtful input on this work. I would also like to express my gratitude to my spouse and family for their endless support—and my former colleagues at BerlinRosen, especially Alex Navarro-McKay, Isaac Goldberg, and Emily Robinson, for teaching me everything that I know about electoral maps.

When partisan politics completely frustrate the efforts of a state to redistrict after a census, federal district courts are tasked with the “unwelcome obligation” of imposing court-ordered electoral maps that meet the federal constitutional one-person, one-vote requirement. This Comment terms these cases “intrastate redistricting stalemates,” novelly distinguishing them from other Equal Protection one-person, one-vote cases. In the wake of Moore v. Harper, federal courts may be remediating more intrastate redistricting stalemates than ever if state courts are stripped of their power to impose remedial congressional maps as outside the scope of “ordinary judicial review” permitted under the Elections Clause. Remediating intrastate redistricting stalemates is trickier for federal courts than remediating other Equal Protection one-person, one-vote cases. In crafting or selecting remedial maps, the U.S. Supreme Court has instructed federal courts that they must defer to states’ policies and plans. To inadequately do so is reversible error. But when is a state policy or plan owed deference? The answer is clear in cases where a state has recently redistricted but a federal court has struck down the state’s new maps for failure to meet federal constitutional or statutory requirements: the state’s policies as expressed in its recently enacted, post-census reapportionment plan are owed deference to the extent they do not violate federal requirements. But when a state fails to redistrict post-census due to an intrastate stalemate, this Comment argues that there is no recently enacted reapportionment plan owed deference. This Comment argues this holds true whether the intrastate stalemate presents as (1) an intralegislative conflict, due to one or both legislative branches failing to agree on a map or to garner sufficient votes to pass a map; (2) a conflict between the state’s legislative branch and the executive branch via the governor vetoing a legislatively passed map; or (3) a conflict between the state judiciary and the mapmaking body over the state constitutionality of the reapportionment plan. Instead, this Comment argues that the controlling source of state policy owed deference when remediating an intrastate redistricting stalemate must be the state’s constitution over other conflicting sources of state policy.

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Volume 90.6
Droughts of Compassion: The Enduring Problem with Compassionate Release and How the Sentencing Commission Can Address It
Nathaniel Berry
B.S. 2020, University of Richmond; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professor Erica Zunkel for her guidance and support, as well as the editors of the University of Chicago Law Review, specifically Michael McCue, Ryan Schloessmann, Kate Gehling, Ivy Truong, Erin Yonchak, and James Marmaduke for their thoughtful suggestions and careful edits throughout the process of writing this Comment. Finally, I would like to thank my parents for their unwavering love and support.

Compassionate release, guided by 18 U.S.C. § 3582(c)(1)(A), allows a district court to reduce a previously imposed criminal sentence if “extraordinary and compelling reasons” warrant a reduction. Congress delegated the task of describing what constitutes an extraordinary and compelling reason to the U.S. Sentencing Commission. In the absence of an "applicable" policy statement from the Commission, courts temporarily enjoyed the discretion to determine what circumstances justify compassionate release. Perhaps unsurprisingly, circuit courts have disagreed on whether certain circumstances could, as a matter of law, justify a grant of compassionate release, causing geographic disparity in individuals’ ability to receive compassion. In April 2023, the Commission updated its policy statement and included a catchall provision codifying judicial discretion and, unless the Commission acts, the disparity that discretion invites. This Comment argues that for judicial discretion to improve compassionate release, the Commission must exercise its authority to resolve circuit splits by promulgating updated policy statements that decide disputed questions and abrogate conflicting circuit case law so that compassionate release can enjoy the benefits of that discretion without accepting the disparity discretion often creates.

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Volume 90.6
Clean Up Your Act: The U.S. Government's CERCLA Liability for Uranium Mines on the Navajo Nation
Michelle David
B.A. 2019, Northwestern University; J.D. Candidate 2024, The University of Chicago Law School.

I would like to thank Professors Hajin Kim, Josh Macey, and Mark Templeton for their thoughtful advice and insight as well as Professors Kim Marion Suiseeya and Shana Bernstein for sparking my interest in this topic as an undergraduate. I am also grateful to the editors and staff of the University of Chicago Law Review for their guidance throughout the year and support in getting this Comment across the finish line, including Bethany Ao, Isabel Dewhurst, Kate Gehling, Leigh Johnson, Annie Kors, Ben Lipkin, James Marmaduke, Jorge Pereira, Amanda Williams, Emilia Porubcin, Dylan Salzman, Ivy Truong, and Erin Yonchak.

This Comment delves into the Cold War legacy of uranium mining on the Navajo Nation. Today, unremediated hazardous waste from more than five hundred deserted mines has continued to poison the health and lands of the Navajo. This Comment argues that the federal government is ultimately liable for the remediation of these mines under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Specifically, because the federal government held legal title to the mining lands and tightly managed the mining operations, the federal government satisfies CERCLA’s liability regime for “owners” and “operators.” The U.S. government’s liability under CERCLA warrants fuller attention by the U.S. Environmental Protection Agency (EPA), Congress, and states in order to achieve the complete, long-overdue remediation of these uranium mines.