University of Colorado Law Review
Volume 72, Issue 1, Winter 2001
FOREWORD
In our first article, Professor Steven Lubet explores one of the most enduring images in American history: the gunfight at the O.K. Corral. The heroic Earp brothers, joined by their friend Doc Holliday, faced down the villainous Clantons and McLaurys in the dusty streets of Tombstone, Arizona, thereby making the West safe for families and civilization. But it turns out that there is another side to the story. In fact, the Earps and Holliday were arrested and charged with murder in the days after the gunfight, after numerous witnesses asserted that they had shot down the Clantons and McLaurys in cold blood. In The Forgotten Trial of Wyatt Earp, Professor Steven Lubet reconstructs the trial that followed, explaining how the decisions and tactics of the lawyers won an acquittal for Wyatt Earp, securing his place in history.
In our second article, Professor Graham C. Lilly critically examines the American jury system and questions whether trends in litigation and jury selection have affected the ability of juries to adequately perform their traditional roles. Professor Lilly concludes that the ever-increasing technical nature of trials, combined with the fact that those most qualified to hear this evidence rarely sit on juries, has led to a decline in the effectiveness of juries in the legal system. He argues that in many cases, jury trials have devolved into a battle for the sympathies of juries resulting in outcomes that may ultimately depend on gut instincts rather than principled legal reasoning. Professor Lilly argues that members of the bench, the bar, academia, and legislative bodies need to acknowledge that long-term trends are affecting jury performance. They must approach the problem with open and creative minds. The Decline of the American Jury uses several examples of cases that represent problems resulting from the erosion of the jury system. Professor Lilly concludes by identifying several remedial measures and evaluating the legal barriers to implementing such change.
In our third article, Professor Robin Craig addresses whether environmental citizen suits violate the constitutional separation of powers doctrine. Article II-based separation of powers challenges have enjoyed recent success against the citizen enforcement (qui tam) provisions of the False Claims Act, and these qui tam provisions have often been compared to environmental citizen suits. Moreover, in the last three major environmental standing decisions that the Supreme Court has issued, a number of Justices have suggested that environmental citizen suits violate the separation of powers doctrine. Thus, the jurisprudential stage is now set for serious constitutional challenges to environmental citizen suit provisions. To date, however, no federal court has articulated a coherent theoretical framework for discussing separation of powers in conjunction with citizen participation in assuring compliance with federal law. Professor Craig suggests that for citizen suits, a viable analytical framework for separation of powers challenges should be the distinction between private rights and public rights. Pursuant to this framework, only the assertion of public rights by private citizens raises Article II separation of powers concerns. Accordingly, the article argues that by requiring environmental citizen suit plaintiffs to meet the injury-in-fact standing requirement, the Supreme Court has already transformed those citizen suits into private rights of action that must be found constitutional. Will Separation of Powers Challenges "Take Care" of Environmental Citizen Suits? is the second in a trilogy of articles that Professor Craig has written on citizen suits, federalism, and nonpoint source pollution. The first, Idaho Sporting Congress v. Thomas and Sovereign Immunity: Federal Facility Nonpoint Sources, the APA, and the Meaning of "In the Same Manner, and to the Same Extent as Any Nongovernmental Entity, appeared in the Fall 2000 issue of ENVIRONMENTAL LAW. The third, Local or National? The Increasing Federalization of Nonpoint Source Pollution Regulation, will appear in the Spring 2001 issue of the JOURNAL OF ENVIRONMENTAL LAW AND LITIGATION.
In our first comment, the author analyzes the law and controversy surrounding student-led and student-initiated prayer at public high school graduation ceremonies to determine if they are consistent with the Supreme Court's Establishment Clause jurisprudence. The author concludes that prayers given in response to a vote by the student body are indistinguishable from the Supreme Court's decisions in Lee v. Weisman and Santa Fe Independent School District v. Doe, and, therefore, are unconstitutional. However, the author argues that religious speech of an individual speaker, chosen on facially neutral grounds, and not sponsored by the state in any way does not violate the Establishment Clause and must be permitted in order to protect the student's right to free exercise of religion.
Our second comment examines the medical marijuana movement, and challenges Congress's Commerce Clause authority to regulate state laws that sanction medicinal marijuana. The Supreme Court's traditionally broad interpretation of the Commerce Clause has deferred to congressional policy judgments in this area, allowing federal control of virtually all drug activity, including the local cultivation and use of marijuana. The United States Supreme Court's Commerce Clause decisions in United States v. Lopez and, more recently, United States v. Morrison, suggest that Congress's seemingly unlimited commerce power is subject to real limits. In both cases, the Court held that Congress exceeded its regulatory power under the Commerce Clause. These two opinions, moreover, constitute an integral part of the Court's broader trend toward curtailing federal power in favor of the states. Under the current Court's interpretation of the Commerce Clause, Congress may regulate purely intrastate conduct if it is commercial and if it substantially affects interstate commerce. By insisting that the regulated activity must involve economic conduct, the Court has placed in question Congress's continued ability to regulate certain intrastate activities, including the regulation of medical marijuana.
Our casenote considers an evidentiary quirk of patent infringement litigation: the requirement for corroboration of oral testimony of patent invalidity. Since the Federal Circuit decided Finnigan Corporation v. United States International Trade Commission, testimony offered to invalidate a patent can never be properly considered by the factfinder as "clear and convincing" evidence of invalidity without such corroboration. Before Finnigan, it seemed that the corroboration requirement applied only when a witness testified that she had invented the claimed invention before the patentee. But in 1999, two partially-overlapping panels of the Federal Circuit changed the corroboration requirements in conflicting ways. First, Thomson S.A. v. Quixote Corp. seemed to relax the requirements for corroboration when testimony of prior invention was offered to invalidate a patent. The Thomson opinion appeared to give the factfinder traditional deference to evaluate witness credibility without corroboration in certain circumstances. Less than six months after Thomson, however, Finnigan effectively rejected the standard in Thomson. Moreover, the Finnigan court extended the corroboration requirement to all testimony offered to invalidate a patent, not just testimony of prior invention. The author discusses these recent changes in the requirements for corroboration of witness testimony proffered by defendants in support of their invalidity defenses.
THE EDITORS