Law Commons^™

A Machete For The Patent Thicket: Using Noerr-Pennington Doctrine’S Sham Exception To Challenge Abusive Patent Tactics By Pharmaceutical Companies, Lisa Orucevic

Vanderbilt Law Review

Outrageous drug prices have dominated news coverage of the American healthcare system for years. Yet despite widespread condemnation of skyrocketing drug prices, nothing seems to change. Pharmaceutical companies can raise drug prices with impunity because they hold patents on their drugs, which give them monopolies. These monopolies are only supposed to last twenty years, and then competing lower-cost drugs like generics can enter the market, driving down the costs of pharmaceuticals for all. But pharmaceutical companies have created “patent thickets,” dense webs of overlapping patents surrounding one drug, which have artificially extended the companies’ monopolies for years or even decades …

The Arbitration-Litigation Paradox, Pamela K. Bookman

Vanderbilt Law Review

The Supreme Court's interpretation of the Federal Arbitration Act is universally touted as favoring arbitration. Its arbitration cases and decisions in other areas are also viewed as supporting the Court's more general hostility to litigation. These pro-arbitration and anti-litigation policies can be mutually reinforcing. Moreover, they appear to be mutually consistent, in part because the Court describes the essential features of arbitration as being "informal," "speedy," "efficient"-in short, the categorical opposite of litigation.

This Article contends that the Court's approach is not as "pro- arbitration" as it appears. On the contrary, the Court's pro-arbitration and anti- litigation values sometimes conflict. …

Public Relations Litigation, Kishanthi Parella

Vanderbilt Law Review

Conventional wisdom holds that lawsuits harm a corporation's reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant's reputation in the eyes …

Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Vanderbilt Law Review

The principal task of the U.S. Patent & Trademark Office ("Patent Office" or "Agency") is to determine whether an invention merits a reward of a patent.' There is growing consensus that the Patent Office is failing at this task. Many believe that the Agency allows too many "bad" patents that unnecessarily drain consumer welfare, stunt productive research, and unreasonably extract rents from innovators. The Patent Office's overgranting tendencies have been the subject of multiple reports by the National Academies and the Federal Trade Commission. Patent quality concerns have energized the Supreme Court into taking a renewed interest in substantive patent …

Aging Injunctions And The Legacy Of Institutional Reform Litigation, Jason Parkin

Vanderbilt Law Review

Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court's ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal …

The Litigation Budget, Jay Tidmarsch

Vanderbilt Law Review

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives-both rational and irrational-to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties' incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require …

Fee Shifting And The Free Market, Jonathan T. Molot

Vanderbilt Law Review

It is uncontroversial that litigation is too expensive. Controversy abounds, however, over who is to blame and what is to be done about the problem. Plaintiffs and defendants each accuse the other of pursuing weak or meritless litigation positions that inflict needless expense. This Article suggests that regardless of who is correct-and who is more often at fault-the same set of solutions may be available to assuage the problem. The Article embraces a combination of procedural reforms and market mechanisms designed to improve matters for both sides and to make it less likely that a party with a meritorious litigation …

Insurers, Illusions Of Judgment & Litigation, Chris Guthrie, Jeffrey J. Rachlinski

Vanderbilt Law Review

Insurers play a critical role in the civil justice system. By providing liability insurance to parties who would otherwise be untenable as defendants, insurers make litigation possible. Once litigation materializes, insurers provide representation, pay legal fees, and often play a central role in resolving disputes through settlement or adjudication. In this paper, we explore empirically how these key litigation players make important decisions in the litigation process, like evaluating a case, deciding whether to settle, and if so, on what terms. We find that insurers, though not entirely immune to the effects of cognitive illusions that have been shown to …

Medical Malpractice Litigation And Tort Reform: It's The Incentives, Stupid, David A. Hyman, Charles Silver

Vanderbilt Law Review

Health care providers and tort reformers invariably claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non- negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. They complain that compensation flows almost randomly, winding up …

Brown, The Civil Rights Movement, And The Silent Litigation Revolution, Stephen C. Yeazell

Vanderbilt Law Review

One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued Brown v. Board of Education spent much time thinking about mass torts. Nonetheless, it is entirely appropriate that a commemoration of their achievements include not only that topic but also international human rights and health care, as well as the more expected ones of education and social welfare. Brown was part of a revolution, and revolutions often have collateral effects as important as their immediate consequences. The civil rights movement followed the same pattern.

As an immediate consequence, that movement …

Laying One Bankrupt Critique To Rest: "Sosa V. Alvarez-Machain" And The Future Of International Human Rights Litigation In U.S. Courts, Ralph G. Steinhardt

Vanderbilt Law Review

In offering a form of civil redress to the victims of international human rights violations, litigation under the Alien Tort Statute ("ATS") has come to reflect in microcosm the ways that international law and practice have changed in the last half century. Specifically, the successful ATS cases since the Second Circuit's seminal decision in Fildrtiga v. Peia-Irala illustrate the blurring of certain structural distinctions that had long given international law its characteristic shape, especially the distinctions between public and private international law, between treaties and custom, between state and nonstate actors, between international and domestic law, and between lex lata …

School Funding Litigation: Who's Winning The War?, John Dayton, Anne Dupre

Vanderbilt Law Review

Much is being made this year in education law circles and elsewhere about the fiftieth anniversary of Brown v. Board of Education.' The Brown decision has certainly left an indelible mark on schools and other institutions in the United States. But last year the thirtieth anniversary of another major Supreme Court opinion passed largely without comment, despite the fact that it may be the most significant decision regarding public schools since Brown. In 1973, the U.S. Supreme Court, in San Antonio Independent School District v. Rodriguez, concluded that education was not a fundamental right and that disparities in school funding …

Litigated Learning And The Limits Of Law, Michael Heise

Vanderbilt Law Review

The fiftieth anniversary of Brown v. Board of Education' certainly warrants well-deserved celebration, but not one that deflects careful analysis of its legacy. Brown's legacy and what it says about the efficacy of litigation as a vehicle to achieve social change mean different things to different people. Perspectives on what Brown "means" and what it has accomplished vary tremendously and reveal just as much about ourselves as they do about the decision itself. This ambiguity invariably muddles Brown's legacy.

I argue that Brown's legacy does not bode well for future litigation efforts seeking to enhance the equal educational opportunity doctrine, …

Taking Adequacy Seriously: The Inadequate Assessment Of Adequacy In Litigation And Settlement Classes, Linda S. Mullenix

Vanderbilt Law Review

In the past decade, the debate over settlement classes has moved considerably beyond the "sturm und drang" inspired by the epic settlement classes in Amchem Products, Incorporated. v. Windsor' and Ortiz v. Fibreboard Corporation. Whereas Amchem asked whether and on what terms federal courts were authorized to approve settlement classes, and Ortiz asked whether a mandatory, limited- fund global asbestos settlement was sustainable, the settlement class issue du jour focuses on the ability of litigants to collaterally attack settlements in remote forums and at remote times.

Because the collateral attack problem is so vital to the sanctity of settlement classes, …

File Early, Then Free Ride: How Delaware Law (Mis)Shapes Shareholder Class Actions, Elliott J. Weiss, Lawrence J. White

Vanderbilt Law Review

Delaware courts have largely privatized enforcement of fiduciary duties in public corporations. In In re Fuqua Industries, Inc. Shareholder Litigation, Chancellor Chandler expressly acknowledged this judicial policy. He noted that Delaware courts implement it partly by allowing private attorneys, working on a contingent fee basis, to initiate and maintain derivative and class actions in the names of "nominal shareholder plaintiffs." Attorneys are subject only to the relatively weak constraints that they must inform their "clients" and receive their consent before they file shareholder suits. Further, Delaware courts use cost and fee shifting mechanisms to "economically incentivize" those attorneys to initiate …

Insurance Triggers As Judicial Gatekeepers In Toxic Mold Litigation, Gregory A. Goodman

Vanderbilt Law Review

At the dawn of the 21st century, a new plague is leeching across the nation's legal landscape. "Some call it the Perfect Storm-a confluence of events that merged into a financial crisis for the insurance industry and a politically charged catastrophe for... homeowners, threatening disaster for the.., economy." What exactly is this Perfect Storm quickly overwhelming both the legislative and judicial systems? Mold. Not the harmless mold growing in a neglected bathtub, but toxic mold that can ravage homes and other buildings from the inside out, while allegedly causing the inhabitants to suffer nasty fates. Mold destroying dwellings is nothing …

Makes Sense To Me: How Moderate, Targeted Federal Tort Reform Legislation Could Solve The Nation's Asbestos Litigation Crisis, Mark H. Reeves

Vanderbilt Law Review

During the three decades he spent working as a machinist for the United States Navy, Henry Plummer suffered continuous exposure to the asbestos used in the insulation, gaskets and pipe coverings of warships. In late 1999, a biopsy confirmed that he had developed mesothelioma, a gruesome type of cancer that kills all those who contract it and is caused only by asbestos. In an effort to combat his cancer, Mr. Plummer embarked on a long, painful course of treatments that included chemotherapy and the removal of his left lung in April 2000. In early 2001, however, Mr. Plummer's doctor informed …

Just What The Doctor Ordered: The Admissibility Of Differential Diagnosis In Pharmaceutical Product Litigation, Wendy Michelle Ertmer

Vanderbilt Law Review

In the decade since Daubert v. Merrell Dow Pharmaceuticals Inc., federal judges have exercised their role as gatekeepers of expert witness testimony to evaluate many different categories of scientific evidence. They have not done so without controversy, however. Because the element of causation in pharmaceutical product litigation is frequently dispositive, the application of Daubert to scientific evidence of causation has been particularly contentious. Plaintiffs in such cases must prove both general causation-that the product is capable of causing an injury of the type from which the plaintiff suffers-and specific causation-that the product was the actual cause of the plaintiffs injury. …

The Practice And Problems Of Plain Meaning: A Response To Aleinikoff And Shaw, Frederick Schauer

Vanderbilt Law Review

The attention so many of the participants in this Symposium have paid to my thoughts about the role of plain meaning in statutory interpretation' is both gratifying and surprising. Among those scholars finding my ideas worthy of note are Professors Aleinikoff and Shaw, and my aim is both to comment on their contribution here and to respond more generally to what others have said about my views on the role of plain meaning. By continuing the discussion I hope to clarify some of the claims I have made about plain meaning, and in doing so to foster a better appreciation …

An Analysis Of The Myths That Bolster Efforts To Rewrite Rico And The Various Proposals For Reform:"Mother Of God-Is This The End Of Rico?", G. Robert Blakey, Thomas A. Perry

Vanderbilt Law Review

In 1970 Congress enacted the Organized Crime Control Act, Title IX of which is known as the Racketeer Influenced and Corrupt Organizations Act, or RICO. Congress enacted the 1970 Act to "strengthen[]the legal tools in the evidence-gathering process, [to] establish[] new penal prohibitions, and [to] provid[e] enhanced sanctions and new remedies .,, RICO covers violence, the provision of illegal goods and services, corruption in labor or management relations, corruption in government, and commercial fraud. Congress found in 1970 that the sanctions and remedies available to combat these crimes under the law then in force were unnecessarily limited in scope and …

Deceptive Negotiating And High-Toned Morality, Walter W. Steele, Jr.

Vanderbilt Law Review

Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer's perspective, an advantage of negotiation over other forms of dispute resolution is that …

Policing The Bases Of Modern Expert Testimony, Ronald L. Carlson

Vanderbilt Law Review

Technical witnesses have revolutionized the American lawsuit. Advertisements in litigation periodicals bear witness to the broad range of courtroom expert testimony available to the trial bar. A specialist in airplane pilot error places an advertisement on the same page with an advertiser who is eminently qualified to provide expert testimony in churning securities litigation."' Also included are obscenity experts for criminal cases as well as a timber products specialist with "global experience in accidents and related cases," who claims, "more than 30 years experience with wood utility poles."' Within the category of timber and woods there are other experts as …

The Development Of Professional Judgment In Law School Litigation Courses: The Concepts Of Trial Theory And Theme, Edward J. Imwinkelried

Vanderbilt Law Review

I was delighted when the Vanderbilt Law Review asked me to submit a short essay on trial advocacy. This Essay allows me to discuss two concepts, the trial theory and theme, that should be highlighted in every law school litigation course. Several years ago I wrote a text on commercial litigation for practitioners. That text proposed definitions for the concepts of "theory" and "theme"and suggested that trial attorneys organize their pretrial preparation and trial presentation in terms of those concepts. Since the publication of the text, I have attempted to refine the concepts and to use the concepts to restructure …

The Tennessee County Courts Under The North Carolina And Territorial Governments: The Davidson County Court Of Pleas And Quarter Sessions, 1783-1796, As A Case Study, Theodore Brown Jr.

Vanderbilt Law Review

This Note will attempt to provide the framework for a more extended institutional examination of the post-revolutionary courts that functioned in the counties of western-most North Carolina and,beginning in 1790, the Territory South of the River Ohio before their organization into the new state of Tennessee in June 1796. The Note initially will set forth the jurisdiction and the regulatory authority of the county courts of pleas and quarter sessions under the North Carolina and territorial governments, will describe the jurisdiction and authority of the courts' individual justices, and will examine the role of the petit jury in exercising a …

Some Comments On The Litigation Explosion, John W. Wade

Vanderbilt Law Review

My comment must start with a strong commendation of Attorney General Bell for recognizing the crisis created by the current "litigation explosion" in our courts and for providing leadership in seeking means for alleviating and perhaps even solving it. I am sure that the Justice Department's new Section on Improvement in the Administration of Justice will prove invaluable, both as an originator and a clearinghouse for compiling and evaluating new ideas and as a means for putting them into effect. Dan Meador makes an ideal selection as assistant attorney general to head it. I also must commend the Justice Department …

An End, And Perhaps A Beginning, Tom C. Clark

Vanderbilt Law Review

As one who has devoted his professional lifetime, now in its fifty-first year, to the development of procedures and techniques for the improvement of the administration of justice, I say that there is no substitute for the original research furnished by the Race Relations Law Survey in the race relations field. It has made the most practical contribution to the improvement of race relations of any publication. One might compare this contribution to that of our law clerks here on the Court, who research and report on state and federal decisions previously made on a given topic. However, the Survey …

Book Reviews, Garrett Power, Joseph M. Boyd, Jr.

Vanderbilt Law Review

The Environmental Law Reporter in the Classroom

The Environmental Law Reporter' is a cumulative monthly loose-leaf service devoted chiefly to the environmental issues confronting private attorneys, governmental officials, and teachers. During the fall semester of 1971, the Reporter was employed as a text for the University of Maryland's basic course in environmental law. This review will attempt to measure its potential as a teaching tool.

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Guidebook for Litigation

The common law is still the most useful and flexible weapon in the arsenal of those who care enough about the quality of our environment to do something about it. This …

Severance -- A Means Of Minimizing The Role Of Burden And Expense In Determining The Outcome Of Litigation, Warren F. Schwartz

Vanderbilt Law Review

This article is divided into two main parts. First, it is assumed that the controlling question is how severance affects the likely outcome of litigation by altering the normal incidence of expense and burden. Then the article examines the question of whether there are overriding considerations (particularly the need for "tempering" by reference to the entire controversy) which require that severance be withheld even if dictated by considerations of economy.

Book Reviews, Elliott E. Cheatham, George Rossman

Vanderbilt Law Review

Lawyer and Litigant in England: The Hamlyn Lectures, 1962

By R.E. Megarry

London: Stevens & Sons, Limited, 1962. Pp. x, 205.

reviewer: Elliott E. Cheatham

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The Language of the Law

Boston: Little,Brown & Co., 1963. Pp. xiv, 526. $12.50.

By David Mellinkoff

reviewer: George Rossman

The Theory Of Criminal Discovery And The Practice Of Criminal Law, David W. Louisell

Vanderbilt Law Review

To crystallize in a few words the motif of a career as varied and comprehensive as that of Eddie Morgan would in any event be difficult, but it is doubly so for a life devoted, as his has been, to stuff as vital and dynamic as procedure and evidence. For me, his work most fundamentally is to be characterized as a quest for greater rationality in the adjudicative process. Whether one thinks of his analysis of the hearsay rule,' or his rationale of the admissions exception to it, or his treatment of the dead man's statute, or his study of …