The Rutgers Law Record

While patentees have “the right to exclude others from making, using, offering for sale, or selling [their] invention[s],” there is no obligation to manufacture or commercialize it. One of the most famous patents for a bacterium that was capable of breaking down crude oil in order to treat oil spills was never produced, despite its immense potential usefulness and an appeal to the U.S. Supreme Court to get the patent approved. There are a number of reasons why a patentee may never end up commercializing his or her invention. For instance, “a nonmanufacturing patentee may lack the expertise or resources to produce a patented product, prefer to commit itself to further innovation, or otherwise have legitimate reasons for its behavior.” Chakrabarty, the inventor of the renowned oil-eating bacterium, likely never put his famous invention to public use because of the unknown environmental consequences of dumping the bacteria into water supplies. However, a patentee may not commercialize his product for nefarious reasons, such as using patents “as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.”

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On January 19, 2012, the Dwight neighborhood, a majority African-American part of New Haven, Connecticut, convened to discuss the construction of a fueling station on an empty lot in their neighborhood. The meeting had been called by the prospective landlord at the behest of the City of New Haven. The fueling station would be operated by a large northeastern corporation: Stop and Shop. An objective observer not equipped with more details would fairly assume that the meeting would be fraught with opposition and accusations that a large corporation was taking advantage of a politically weak community. This, however, is a story about a community taking the initiative and controlling its own development.

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As the destructive effects of the Great Recession on the American economy slowly abate, economic problems continue to roil law schools. Perhaps the clearest manifestation that the law school business model is at a crossroads is the significant decline in overall student applications and enrollment. Among the more sobering figures is a 36% reduction in the size of the entering class of 2013 as compared with that of 2010, according to data from the Law School Admissions Council. In 2014 there were 65,119 applicants to law school, 14% lower than the prior year. The 350 largest U.S. law firms grew by 1.7% in 2011 and 1.1% in 2012, relatively low rates compared with the past 20 years. In addition, around 40% percent of those firms shrank the size of their staff in 2013 as compared to the prior year.

In a market where the supply for legal services well exceeds demand, law firms are seeking competitive advantages through mergers that tend to reduce staff and are seeking other ways to lower costs and operate more efficiently. Increased competition and a progressive shift of control in the power over strategic litigation decisions from outside firms to general counsel have been hallmarks of the post-recessionary environment, leading a Georgetown University study to conclude that the legal industry can expect to see more “sluggish demand growth, persistent challenges of low productivity, ongoing client pushback on rate increases, and a continuing struggle to maintain discipline on expenses.”

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In the wake of the big 2011-term cases, such as Martinez v. Ryan, Maples v. Thomas, and the double punch of Lafler v. Cooper and Missouri v. Frye, the Supreme Court’s 2012-term habeas cases cannot help but seem a little anemic, especially given the sheer number of blockbuster cases in areas of somewhat broader appeal. Two of the term’s more-notable habeas cases were, at first blush, quite modest in scope. Trevino v. Thaler was a slight gloss on Martinez v. Ryan, and McQuiggin v. Perkins added AEDPA’s one-year statutory limitations period to the list of considerations that may be relaxed in the face of an actual-innocence claim.

Much has been written about Trevino and McQuiggin in the mainstream media, and the scope of both will undoubtedly soon be a topic of discussion in legal periodicals. In this short article, I will add to the discussion by analyzing an odd feature of both cases: the vehement dissents. Despite being cases of arguably minor impact, neither was unanimous — far from it —and both drew strong-worded responses. Trevino contained two, and McQuiggin brought a barnstormer by Scalia that was joined—mostly, as we will see below—by the conservative wing of the Court.

In this piece I argue that the dissents in both cases signal more than a disagreement over statutory interpretation and proper outcomes. Rather, as Andrew Cohen of the Atlantic suggested in his discussion of Alleyne v. United States, the Court appears to be engaging in a coded discussion with itself, contemplating the future role to be played by the federal courts in addressing habeas corpus petitions—a role complicated by evolving ideas of innocence, exoneration, and redemption colliding with principles of federalism and finality. Trevino and McQuiggin, while minor, might provide a fascinating glimpse into where the Supreme Court finds itself as of 2013 and 2014.

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The use of zoning ordinances to exclude natural gas extraction presents many questions from a social perspective. It raises questions about basic property rights, the relationships between citizens and various levels of government, and how the benefits and burdens of the extraction affect the community, just to name a few. Again, the purpose of this note is not to weigh these social values and costs, but rather to look at how these laws fit within the traditional context of land use regulations and what differentiates them from a traditional land use case. This note will look at the differences in state regulations, how the municipalities have chosen to regulate industry use, and how courts in both New York and Pennsylvania have resolved these disputes. Finally, it will discuss implications for the future applications of land use controls as a means to exclude gas drilling both in the Marcellus and other gas-producing regions.

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