Social and Behavioral Sciences Commons^™

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 …

Empirical Analysis And Administrative Law, Cary Coglianese

All Faculty Scholarship

Empirical research has been used to study many areas of law, including administrative law. In this article Professor Coglianese discusses the current and future role of empirical research in understanding and improving administrative rulemaking. Criticism of government regulation and calls for regulatory reform have grown in the last few decades. Empirical research is a valuable tool for designing reforms that will truly improve the effectiveness, efficiency, and legitimacy of regulatory governance. Specifically, Professor Coglianese discusses three areas of administrative law that have benefited from empirical research—economic review of new regulations, judicial review of agency rulemaking, and negotiated rulemaking.

Agencies are …