Teva And The Process Of Claim Construction, 2017 Loyola Law School
Teva And The Process Of Claim Construction, Lee Petherbridge Ph.D., R. Polk Wagner
In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decisionmaking in this area. In this Article, we closely examine the Teva opinion and situate it within modern claim construction jurisprudence. Our thesis is that the Teva holding is likely to have only very modest effects on the incidence of deference to district court claim construction but that for unexpected reasons the ...
12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, 2017 Detroid Mercy School of Law
12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, Michelle L. Richards
Marquette Law Review
The Supreme Court has found in favor of preemption in tort liability cases involving matters of heavy federal regulation in which Congress has delegated implementation of a statute involving technical subject matter to the agency. It has not been the case, however, in matters concerning the labeling of prescription drugs, despite the fact that the FDA has exclusively regulated drug labeling for more than a century. In fact, the current state of affairs now allows a jury to substitute the judgment of the FDA in approving a label on a name-brand drug for their own in state law failure to ...
From Inside The Cage To Outside The Box: Natural Resources As A Platform For Nonhuman Animal Personhood In The U.S. And Australia, 2017 Florida A & M University College of Law
From Inside The Cage To Outside The Box: Natural Resources As A Platform For Nonhuman Animal Personhood In The U.S. And Australia, Randall S. Abate, Jonathan Crowe
Nonhuman animals are currently treated as property under U.S. and Australian law, leaving them open to various kinds of exploitation. There has been a gradual evolution away from this property paradigm in both countries, but significant work remains to ensure that nonhuman animals are afforded adequate legal protections. This article considers the legal avenues available to protect nonhuman animals in the U.S. and Australia, focusing particularly on the attribution of legal personhood. Section 2 of the article reviews attempts by the Nonhuman Rights Project (NhRP) to establish legal personhood protections for nonhuman animals through writ of habeas corpus ...
The Sixteenth Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center, 2017 Fordham University School of Law
The Sixteenth Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center, Sean J. Griffith, The Honorable Andre G. Bouchard
Fordham Journal of Corporate & Financial Law
No abstract provided.
Aging Injunctions And The Legacy Of Institutional Reform Litigation, 2017 Pace University School of Law
Aging Injunctions And The Legacy Of Institutional Reform Litigation, Jason Parkin
Pace Law Faculty Publications
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 ...
Choice Of Law And Jurisdictional Policy In The Federal Courts, 2017 University of Pennsylvania Law School
Choice Of Law And Jurisdictional Policy In The Federal Courts, Tobias Barrington Wolff
For seventy-five years, Klaxon v. Stentor Electric Manufacturing has provided a one-line answer to choice-of-law questions in federal diversity cases: Erie Railroad v. Tompkins requires the federal court to employ the same law that a court of the state would select. The simplicity of the proposition likely accounts for the unqualified breadth with which federal courts now apply it. Choice of law doctrine is difficult, consensus in hard cases is elusive, and the anxiety that Erie produces over the demands of federalism tends to stifle any reexamination of core assumptions. The attraction of a simple answer is obvious. But Klaxon ...
Taking A Second Look At Mdl Product Liability Settlements: Somebody Needs To Do It, 2017 University of Colorado Law School
Taking A Second Look At Mdl Product Liability Settlements: Somebody Needs To Do It, Christopher B. Mueller
This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, and does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy ...
Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, 2017 University of Colorado Law School
Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski
Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis ...
Limiting The Last-In-Time Rule For Judgments, 2017 Cornell Law School
Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont
Cornell Law Faculty Publications
A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound ...
Making It Up: Lessons For Equal Protection Doctrine From The Use And Abuse Of Hypothesized Purposes In The Marriage Equality Litigation, 2017 Indiana University Maurer School of Law
Making It Up: Lessons For Equal Protection Doctrine From The Use And Abuse Of Hypothesized Purposes In The Marriage Equality Litigation, Steve Sanders
Articles by Maurer Faculty
To survive rational basis scrutiny under the Equal Protection Clause, a law must serve a governmental purpose which is at least legitimate. It is well established that legitimate purposes can sometimes be found through speculation and conjecture-that is, they may be hypothesized-in order to avoid the difficulties of identifying actual purpose or the specter of courts second-guessing legislative judgments. But hypothesized purposes can be abused, and such abuse was rampant in the states' defenses of their bans on same-sex marriage, bans which were ultimately invalidated in Obergefell v. Hodges.
This Article draws on the federal marriage litigation as a lens ...
Agency Law And The New Economy, 2017 University of Colorado Law School
Agency Law And The New Economy, Mark J. Loewenstein
This article considers the status of workers in the "new economy," defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to ...
Restructuring Sovereign Debt After Nml V. Argentina, 2017 Duke Law School
Restructuring Sovereign Debt After Nml V. Argentina, Lee C. Buchheit, G. Mitu Gulati
The decade and a half of litigation that followed Argentina’s sovereign bond default in 2001 ended with a great disturbance in the Force. A new creditor weapon had been uncloaked: The prospect of a court injunction requiring the sovereign borrower to pay those creditors that decline to participate in a debt restructuring ratably with any payments made to those creditors that do provide the country with debt relief.
For the first time holdouts succeeded in fashioning a weapon that could be used to injure their erstwhile fellow bondholders, not just the sovereign issuer. Is the availability of this new ...
A New Hope: Tortious Interference With An Expected Inheritance In Rhode Island, 2017 Pannone Lopes Devereaux & O'Gara LLC
A New Hope: Tortious Interference With An Expected Inheritance In Rhode Island, Rebecca M. Murphy, Samantha M. Clarke
Roger Williams University Law Review
No abstract provided.
An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, 2017 Brooklyn Law School
An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz
Brooklyn Law Review
Mutual funds differ greatly from traditional corporations in the way they are formed and operated. Despite these differences, courts apply the same rules for derivative shareholder litigation to both types of entities. While these rules make sense and were mostly created with corporations in mind, courts have generally been unwilling to consider mutual funds’ unique characteristics in determining whether to allow direct litigation from shareholders. This note explores those unique characteristics and the usual policy reasons for requiring derivative litigation. It concludes that in most cases these unique characteristics make a derivative suit nearly impossible to sustain. Further, the normal ...
Reevaluating Attorney-Client Privilege In The Age Of Hackers, 2017 Brooklyn Law School
Reevaluating Attorney-Client Privilege In The Age Of Hackers, Anne E. Conroy
Brooklyn Law Review
The news story is now familiar: hackers breach a security system and post internal, confidential information online for anyone with an Internet connection to comb through. This digital version of whistleblowing, called “hacktivism,” is attractive to the media, which has leaned on broad First Amendment protections to widely cover the confidential communications revealed by hackers. These hacks also provide attorneys with enticing opportunities to look through previously confidential files. But as ethics and evidentiary rules stand, it is not clear if an attorney may view the files, let alone use them as evidence in litigation. That companies are hacked is ...
Class Actions And The Counterrevolution Against Federal Litigation, 2017 University of Pennsylvania Law School
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for ...
Does Judicial Independence Matter? A Study Of The Determinants Of Administrative Litigation In An Authoritarian Regime, 2017 Allard School of Law at the University of British Columbia
Does Judicial Independence Matter? A Study Of The Determinants Of Administrative Litigation In An Authoritarian Regime, Wei Cui
Lawsuits against the government form a part of the regular functioning of legal systems in democratic countries, and responding to such lawsuits an unavoidable part of governance. However, in the context of authoritarian regimes, administrative litigation has been viewed as a distinctively valuable institution for promoting the rule of law and individual rights. Moreover, the judiciary is portrayed as the keystone to this institution and to the rule of law in general: the more powerful and competent is the judiciary, the more it is able to “constrain government” through judicial review. Through empirical and comparative analyses of over two decades ...
Wherefore Moot Court?, 2017 Washington University School of Law
Wherefore Moot Court?, Richard E. Finneran
Washington University Journal of Law & Policy
This Essay, by Richard E. Finneran, adjunct professor and moot court coach at Washington University School of Law, extols the benefits of participating in moot court programs and offers tips how to instruct students to become better appellate advocates. Finneran underscores the value of studying oral advocacy, particularly as the decline in popularity studying and teaching the art of oral argument is reflected in the lack of quality exhibited by some advocates. Finneran does not attribute this lack of quality on the innate skills of an advocate, but rather places the onus on educators to teach moot court students the ...
Law School Clinic And Community Legal Services Providers Collaborate To Advance The Remedy Of Implied Warranty Of Habitability In Missouri, 2017 Washington University School of Law
Law School Clinic And Community Legal Services Providers Collaborate To Advance The Remedy Of Implied Warranty Of Habitability In Missouri, Karen Tokarz, Zachary Schmook
Washington University Journal of Law & Policy
This Essay discusses the economic and public policy concerns regarding the implied warrant of habitability law and the ability of tenants in the state of Missouri can raise effective defenses to rent and possession/eviction actions. The authors, Tokarz and Schmook, director and supervising attorney, respectively, of Washington University’s Civil Rights and Community Justice Clinic, evaluate these issues in light of Kohner Props., Inc. v. Johnson, which currently awaits a decision from the Missouri Supreme Court. Tokarz and Schmook use statistical analysis to identify recent trends in favorable results for landlords in disputes with tenants and stress the effects ...
The Joy Of Takings, 2017 Manatt, Phelps & Phillips, LLP
The Joy Of Takings, Michael M. Berger
Washington University Journal of Law & Policy
This Essay discusses the various circumstances under which Takings Law can be litigated. Beginning with an analysis of his personal experience in litigation, Berger details significant developments in Takings Law and posits on their future in a rapidly advancing technological sphere. Berger closes by analogizing airport takings law to issues involving drones and speculates that the intersection between drones and the law will mirror that of prior takings lawsuits.