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Full-Text Articles in Business
Can Law And Economics Be Both Practical And Principled?, David A. Hoffman, Michael P. O'Shea
Can Law And Economics Be Both Practical And Principled?, David A. Hoffman, Michael P. O'Shea
David A Hoffman
This article describes important recent developments in normative law and economics, and the difficulties they create for the project of efficiency-based legal reform. After long proceeding without a well articulated moral justification for using economic decision procedures to choose legal rules, scholars have lately begun to devote serious attention to developing a philosophically attractive definition of well-being. At the same time, the empirical side of law and economics is also being enriched with an improved understanding of the complexities of individuals' decision-making behavior. That is where the problems begin. Scholars may have better, more plausible conceptions of well-being in hand, …
Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner
Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner
All Faculty Scholarship
Last Term, in Festo Corporation v. Shoketsu Kinzoku Kogyo Kabashuki Co., the United States Supreme Court missed perhaps the most important opportunity for patent law reform in two decades. At the core of the failure to grasp the implications of "prosecution history estoppel" - a judicially-crafted principle limiting the enforceable scope of patents based on acts occurring during their application process - is the heretofore universal (but ultimately unsupportable) view of the doctrine as an arbitrary ex post limitation on patent scope. This Article demonstrates the serious flaws in this traditionalist approach, and develops a new theory of prosecution history …