Law Commons^™

Determining Classified Evidence’S “Primary Purpose”: The Confrontation Clause And Classified Information After Ohio V. Clark, J. Peter Letteney

Duke Law Journal Online

No abstract provided.

Chevron Deference And Patent Exceptionalism, Christopher J. Walker

Duke Law Journal Online

The Duke Law Journal’s Forty-Sixth Annual Administrative Law Symposium addresses the timely and important topic of patent exceptionalism. Administrative law exceptionalism—the misperception that a particular regulatory field is so different from the rest of the regulatory state that general administrative law principles do not apply—is by no means unique to patent law. Scholars, attorneys, and agency officials in various regulatory fields ranging from immigration to tax have sought, contrary to the Supreme Court’s general guidance, “to carve out an approach to administrative review good for [the regulatory field’s] law only.” This Essay focuses on one of the main debates …

Describing Drugs: A Response To Professors Allison And Ouellette, Jacob S. Sherkow

Duke Law Journal Online

Professors John Allison and Lisa Larrimore Ouellette’s article on courts’ adjudication of certain patent disputes presents some surprising data: pharmaceutical patents litigated to judgment fare substantially worse on written-description analyses if they are not part of traditional pioneer-generic litigation. This Response engages in several hypotheses for this disparity and examines the cases that make up Allison and Ouellette’s dataset. An analysis of these cases finds that the disparity can be best explained by technological and judicial idiosyncrasies in each case, rather than larger differences among pharmaceutical patent cases. This finding contextualizes the power and limits of large-scale empirical patent scholarship, …

Growing Up With Scout And Atticus: Getting From To Kill A Mockingbird Through Go Set A Watchman, Robert E. Atkinson Jr.

Duke Law Journal Online

This essay argues that Harper Lee’s unexpected but welcomed second novel, Go Set a Watchman, is both a fitting and a disappointing sequel to her beloved debut, To Kill a Mockingbird. It is fitting because it confirms that Atticus Finch, the knowing father of the first novel, despite his noble defense of a falsely accused Black man in the Depression Era South, never was, on closer inspection, much of a Progressive, even on matters of race. That, for many of his admirers, has proved hugely, almost Oedipally, disappointing. But what fits equally well, and disappoints even more, is …

Privacy, Public Goods, And The Tragedy Of The Trust Commons: A Response To Professors Fairfield And Engel, Dennis D. Hirsch

Duke Law Journal Online

User trust is an essential resource for the information economy. Without it, users would not provide their personal information and digital businesses could not operate.

Digital companies do not protect this trust sufficiently. Instead, many take advantage of it for short-term gain. They act in ways that, over time, will undermine user trust. In so doing, they act against their own best interest.

This Article shows that companies behave this way because they face a tragedy of the commons. When a company takes advantage of user trust for profit, it appropriates the full benefit of this action. However, it shares …

Response To Privacy As A Public Good, Priscilla M. Regan

Duke Law Journal Online

In the spirit of moving forward the theoretical and empirical scholarship on privacy as a public good, this response addresses four issues raised by Professors Fairfield and Engel’s article: first, their depiction of individuals in groups; second, suggestions for clarifying the concept of group; third, an explanation of why the platforms on which groups exist and interact needs more analysis; and finally, the question of what kind of government intervention might be necessary to protect privacy as a public good.