Competition and Privacy in Web 2.0 and the Cloud

By Randal C. Picker[*]

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We are once again changing how we use computers. In the past, we moved from mainframes to mini computers to freestanding personal computers.  That was a powerful shift in control and organizational structure. Mainframes were rare and, as such, were tended to with loving care and serviced by a small caste of computing priests.  In contrast, PCs were everywhere: on every knowledge worker’s desk and eventually in the family room of many homes.  In the PC age, the computer desktop was the most valuable real estate around, and for most people, that meant Microsoft Windows.

Microsoft Windows was—and is—both product and delivery system. Product in the sense that Windows performs certain functions that all operating systems perform.  Windows tracks files, sends data through ports for printing, and tells your computer screen how to display fonts and images—all things that we expect of our operating systems. But Windows is more than that: Windows delivers software. Before the advent of the Internet, software delivery was difficult.  A consumer might find the software was pre-installed on a new PC.  Alternately, the consumer could go to a computer store—remember those?—and plunk down her credit card, and walk out with a large, almost empty box that had, buried within it, a CD with new software.

Microsoft had a special role in software delivery because it could guarantee delivery by just incorporating the new software into Windows.  With each new release of Windows—from Windows 3.1 to Windows 95 to 98 and on towards Vista—Microsoft expanded the footprint of Windows.  This expanded footprint was not just a question of taking up more hard drive space; Windows got bigger because it expanded its functionality.  In doing so, it killed off what had been separate markets in freestanding functions provided by other companies.  Disk fragmentation was once a separate product category, but it wasn’t anymore once Microsoft added that function to Windows itself.  Including a product in the next version of Windows insured its widespread distribution as each version of Windows quickly expanded its market share.

In a basic sense, Windows was fundamentally unbounded.  That is, there was no obvious boundary for the scope of functions that might be embraced in Windows.[1]  This boundlessness mattered most when we introduced ubiquitous networks to link computers together to create the Internet and the Web.  The move to networked devices created a possible inflection point, a point of churn and competition as different firms sought the upperhand in the new computing space.  In his May, 1995 Internet Tidal Wave memo, Bill Gates famously feared that Netscape would “commoditize the underlying operating system.”[2]  Gates feared that users would no longer care what operating system ran on their computers; instead, consumers would care only about the browser that sat on top of the operating system.  Windows was going to become plumbing, important to be sure, but fundamentally anonymous and only noticed when it wasn’t working right.  Microsoft moved aggressively against Netscape and relied heavily on its ability to bundle Internet Explorer with Windows at no additional charge to defeat Netscape.  Microsoft won its battle against Netscape, although it did so in ways found to be illegal by competition authorities in the United States.[3]

What Riegel Portends for FDA Preemption of State Law Products Liability Claims (Part II)

By Catherine M. Sharkey[*]

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[Editor's Note: This week, we are pleased to present Professor Sharkey's Essay on FDA preemption in light of Riegel v. Medtronic.  Part II appears today.]  

II.  Judicial Review

The Riegel majority had little to say about judicial review of agency actions or interpretations, given the primacy and determinacy of statutory text to the question at hand. But what little the Court did have to say may have resolved (at least in dicta) a simmering debate over the appropriate level of deference due to agency views on preemption:

In the case before us, the FDA has supported the position taken by our opinion with regard to the meaning of the statute. We have found it unnecessary to rely upon that agency view because we think the statute itself speaks clearly to the point at issue. If, however, we had found the statute ambiguous and had accorded the agency’s current position deference, the dissent is correct that—inasmuch as mere Skidmore deference would seemingly be at issue—the degree of deference might be reduced by the fact that the agency’s earlier position was different.[46]

Wrapped up in this quixotic counterfactual musing are two salient doctrinal points: first, that “mere Skidmore” deference—which is meted out according to the agency’s “power to persuade” the court, as opposed to unconditionally[47]—is the appropriate level of judicial deference; and second, that agency inconsistency is a salient factor, weighing against an agency’s new-found (and by hypothesis, turn-about) position. What is missing is a framework for the Court to undertake judicial review, probing the adequacy of the reasons given by the agency for taking a particular action, as well as for changing tack and taking a different course of action.

What Riegel Portends for FDA Preemption of State Law Products Liability Claims

By Catherine M. Sharkey[*]

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[Editor's Note: This week, we are pleased to present Professor Sharkey's Essay on FDA preemption in light of Riegel v. Medtronic.  Part I appears today.  Part II of this Essay will appear on Thursday.]  

Introduction: Preemption Cases in Search of a Framework

In Riegel v. Medtronic, Inc., the U.S. Supreme Court held that a federal statute governing regulation of medical devices expressly preempts, or displaces, state tort law claims when a device has received FDA premarket approval.[1]  A month after the Court issued this opinion, Justice Scalia inveighed against the news media coverage of Riegel (an opinion that he authored) at a meeting convened by the Food and Drug Law Institute:

Scalia said news organizations often fail to focus on the text of the laws the Court interprets . . . . The media often make it appear as though the court is reaching policy judgments on its own rather than basing its decisions on the text of the law at issue in a case . . . . In some instances, said Scalia, the news media leave the impression that no ruling based on the text of a law “is even possible.”[2]

Scalia’s majority opinion can indeed be fairly characterized as a “narrow, textual interpretation” of the preemption clause of the congressionally enacted Medical Devices Amendments of 1976 (MDA) to the Federal Food Drug and Cosmetics Act (FDCA).[3]  Express preemption cases, at least in theory, can begin and end with statutory text.

But it is rare to find a products liability preemption case where, in Justice Scalia’s words, “the statute itself speaks clearly to the point at issue.”[4]  Far more typically, disagreements erupt among the Justices over whether statutory language is in fact clear.  Often congressional legislation touches on some aspects of federal regulation of consumer products, motor vehicles, or recreational boats (to name a few examples), without clearly specifying the interrelationship with state common law tort claims.  In such legislation, Congress often creates confusion by including both a preemption clause, which mandates displacement of competing or conflicting state law standards, and a savings clause, which purports not to upend existing state common law liability.[5]

Where the language of the preemption and savings clauses points in opposite directions, or where Congress has been cryptic or silent on the matter, Justice Scalia’s ode to text will ring hollow.  Courts will have to decide on the basis of implied conflict preemption (as opposed to express preemption), looking at the entire statutory and regulatory framework to determine whether state laws either “make it ‘impossible’ for private parties to comply with both state and federal law,”[6] or, more broadly, whether state laws frustrate or “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[7]  Justice Ginsburg’s lone dissent in Riegel may well portend the true battleground in implied conflict preemption challenges to come: “In the absence of legislative precision . . . courts may face the task of determining the substance and scope of Congress’ displacement of state law.”[8] Where statutory text is indeterminate, where are courts to look?

Several options present themselves.  First, courts may resort to the “presumption against preemption” statutory canon to raise the bar against interpretations favoring preemption absent clear language by Congress.[9]  While this approach retains some appeal for judges and academic commentators,[10] it has receded of late in the imagination of the Supreme Court Justices.  In fact, this canon was not even mentioned by the majority in Riegel.[11]

Heller's Future in the Lower Courts

By Glenn H. Reynolds[*] & Brannon P. Denning[**]

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The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,[1] and the buzz has been considerable.  Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point.  What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.

The repudiation of this extensive body of case law[2]  suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws.  Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts.

If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity.  Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions.

In the pages that follow, we take a look at these aspects of Heller.  The triumph of the Standard Model of the Second Amendment is examined in Part I.  Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic.  Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls post-Heller.

Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality

By Colin Miller[*]

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Introduction

Two recent 60 Minutes stories have shed light on a dilemma that previously remained in the shadows for years, much like the innocent men it affected.  In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald’s.  What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed.  The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client’s confession.  Coventry and Kunz did prepare an affidavit detailing Wilson’s guilt and in fact planned to come forward if Logan dwere given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan’s life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit: being locked up—Logan in a prison cell; the affidavit in a lock box.  Pained by guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan’s eventual release from prison twenty-six years after he entered.[1]

A similar disposition still eludes Lee Wayne Hunt. Hunt and Jerry Cashwell were convicted in 1986 of murdering Lisa and Roland “Tadpole” Matthews in North Carolina based in part upon an FBI lead bullet analysis, which has since been found unreliable and potentially misleading.  While the jurors who sentenced Hunt to two life sentences plus twenty years imprisonment heard this questionable evidence, they did not hear that Cashwell confessed to being the sole killer to his attorney, appellate public defender Staples Hughes, in 1986.  As in the Logan case, Hughes kept the confession under wraps until Cashwell’s death. Unlike Coventry and Kunz, however, Hughes did not procure his client’s consent to disclose the confession after Cashwell’s death and had a disciplinary complaint leveled against him.  Whereas the North Carolina State Bar dismissed the complaint against Hughes after a protracted investigation, Hunt remains in the Johnson Correctional Institute after the Supreme Court of North Carolina recently refused to hear his appeal without explanation.[2]

While the nationwide attention given to these cases is new, the dilemma they present is not.  There are manifold examples of attorneys keeping proverbial smoking guns locked away while prison bars do the same to innocent men, but perhaps the most (in)famous is the case of George Reissfelder.  In 1967, Reissfelder and William Sullivan were convicted of first degree murder and armed robbery in connection with a payroll holdup in Boston.  Years later, as Sullivan was on his deathbed, he confessed to a jailhouse priest that Reissfelder was not involved in the holdup.  Reissfelder’s court-appointed attorney, Roanne Sragow, and her associate, future Presidential candidate John Kerry, later uncovered that Sullivan previously made a similar confession to his attorney, who felt duty bound to keep silent for over a decade.  Indeed, even after Sragow and Kerry moved to release Sullivan’s former attorney from his obligation of confidentiality, the judge denied the motion, and it took a waiver from Sullivan’s family before Reissfelder was freed from the cell at Walpole State Prison that housed him for fifteen years.[3]

How do these injustices occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney’s services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted.  And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent “reasonably certain death or substantial bodily harm,”[4] the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding examples.[5]  Conversely, Massachusetts Rule of Professional Conduct 1.6(b)(1) explicitly permits attorneys to disclose client information to, inter alia, “prevent the wrongful execution or incarceration of another.”[6]  This Essay argues that the twenty-six states that have adopted some form of amended Model Rule 1.6(b)(1) can and should read an implied wrongful incarceration/execution exception into their existing rules while the remaining twenty-three states (and the District of Columbia) that have not adopted some form of amended Model Rule 1.6(b)(1) should amend their rules to create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions.

The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda

By Mitchell H. Rubinstein[*]

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Professors Gregory and Secunda and I are all interested to see what impact Sprint/United Management Company v. Mendelsohn[1] will have on the admissibility of “me too” evidence in employment discrimination litigation, and in particular, comparative evidence from another employee of the defendant-employer who did not share the plaintiff’s supervisor, but was affected by a similar type of adverse employment action—such as the reduction in force (and accompanying layoffs) at issue in Sprint.  Professor Gregory and I predict that Sprint will result in much more litigation over this issue of admissibility,[2] while Professor Secunda remains skeptical that Sprint will have much of an impact at all.[3]

Professor Gregory’s essay highlights the central problem in employment discrimination jurisprudence today—proving or disproving claims of harassment with only circumstantial evidence. Discussing sexual harassment cases, Professor Gregory states that many cases boil down to nothing more than “‘he said, she said’ debate[s].”[4]  He goes on to compare “he said, she said” with “me too” cases and postulates that while the admission of “me too” evidence will provide more support for claims of harassment, one result of Sprint may be that litigants will attempt to present an endless line of “me too” witnesses.[5]  Professor Gregory does not opine on what Sprint means with regard to the actual admissibility of “me too” evidence; instead he simply concludes that this will be left “to the pragmatic wisdom of trial court judges.”[6]

Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of "Me Too" Evidence of Discrimination

By David L. Gregory[*]

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Introduction

In the essay that started this discussion, Professor Mitchell Rubinstein provides a clear analysis of the Supreme Court’s decision in Sprint/United Management Company v. Mendelsohn[1] and points out the lack of consistency in post-Sprint decisions.[2]  Professor Rubinstein correctly concludes that, on balance, plaintiff-employees in employment discrimination cases ultimately stand to benefit more than defendant-employers from the Sprint decision.[3]  And, equally important, he predicts “that Sprint is going to result in much more ‘me too’ evidence being admitted, [which may result in] more expansive plaintiff discovery requests seeking out comparative employees and where such evidence is found, lengthier trials.”[4]

Sprint is a substantially practical decision.  Accordingly, Professor Rubinstein does not attempt to impose an abstract theoretical framework onto the Sprint decision.[5]  Indeed, “me too” cases will continue to be decided on a case-by-case basis, without reference to a larger theoretical picture.  An analogy to the proverbial “forest and the trees” is tempting, with the trees being various employment discrimination decisions and the forest the jurisprudence underlying employment discrimination cases.

Yet, perhaps it is more helpful to think instead of an already dense, and now dramatically proliferating underbrush composed of employment discrimination cases turning on the admission of “me too” evidence and testimony.[6]  Whether the courts clear out, set fire to, or fertilize this underbrush, is the open question with which Professor Rubinstein concludes his essay: “because the Court did not definitively resolve the issue, there likely will be additional litigation until the Supreme Court resolves it once and for all.”[7]  Hence, litigators and particular parties seem destined, at least for now, to continue trudging through the underbrush of “me too” evidence and employment discrimination law.  But, if we ever make it through the post-Sprint underbrush, where, exactly, will we be?