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Articles 1 - 13 of 13
Full-Text Articles in Law
The Growth And Need For Veterans Treatment Courts, Chad Lennon
The Growth And Need For Veterans Treatment Courts, Chad Lennon
Touro Law Review
No abstract provided.
Update On Antitrust And Pay-For-Delay: Evaluating “No Authorized Generic” And “Exclusive License” Provisions In Hatch-Waxman Settlements, Saami Zain
San Diego Law Review
In Federal Trade Commission v. Actavis, the United States Supreme Court held that a patent litigation settlement where a branded drug company pays a generic drug company to end the litigation and delay launching its generic may violate the antitrust laws. Although the decision ended years of controversy over whether such settlements were subject to antitrust scrutiny, many issues remain unresolved concerning the lawfulness of these settlements. In particular, courts have struggled in assessing the legality of patent settlements between branded and generic drug manufacturers involving non-cash compensation or benefits. This article discusses one type of non-cash compensation that is …
Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
Can We Learn Anything About Pleading Changes From Existing Data?, Jonah B. Gelbach
All Faculty Scholarship
In light of the gateway role that the pleading standard can play in our civil litigation system, measuring the empirical effects of pleading policy changes embodied in the Supreme Court's controversial Twombly and Iqbal cases is important. In my earlier paper, Locking the Doors to Discovery, I argued that in doing so, special care is required in formulating the object of empirical study. Taking party behavior seriously, as Locking the Doors does, leads to empirical results suggesting that Twombly and Iqbal have had substantial effects among cases that face Rule 12(b)(6) motions post-Iqbal. This paper responds to …
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander
University of Michigan Journal of Law Reform
The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg
University of Michigan Journal of Law Reform
By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …
Research Tool Patents After Integra V. Merck - Have They Reached A Safe Harbor, Wolrad Prinz
Research Tool Patents After Integra V. Merck - Have They Reached A Safe Harbor, Wolrad Prinz
Michigan Telecommunications & Technology Law Review
The saga surrounding the Integra v. Merck cases has rekindled a heated debate about the proper scope of both common law exemption and the safe harbor provision, causing significant concern for owners of research tool patents. This Article will argue that the next judicial decision addressing the question of research tool patents should clarify that they are in a safe harbor because none of the two exemptions from infringement referenced above extends to the use of research tools in experiments in order to preserve the necessary incentives for their creation in the first place. Allowing access to research tools under …
Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel
Trolling For Trolls: The Pitfalls Of The Emerging Market Competition Requirement For Permanent Injunctions In Patent Cases Post-Ebay, Benjamin H. Diessel
Michigan Law Review
In eBay v. MercExchange, a unanimous Supreme Court announced that a new four-factor test should be employed by district courts in determining whether to award an injunction or damages to an aggrieved party whose intellectual property has been infringed. In the context of permanent injunctions in patent cases, district courts have distorted the four-factor test resulting in a "market competition requirement." Under the new market competition requirement, success at obtaining an injunction is contingent upon a party demonstrating that it is a market competitor After consistent application in the first twenty-five district court cases post-eBay, the market competition requirement …
Judicial Independence, Judicial Accountability And Interbranch Relations, Stephen B. Burbank
Judicial Independence, Judicial Accountability And Interbranch Relations, Stephen B. Burbank
All Faculty Scholarship
In this paper I argue that the main cause of the poisonous state of interbranch relations involving the federal judiciary, as of the frequent and strident attacks on courts, federal and state, are strategies calculated to persuade the public that courts are part of ordinary politics and thus that judges are policy agents to be held accountable as such. Although unremarkable in the sense that a breakdown in norms of interdependency is a defining characteristic of contemporary politics, I regard the current situation involving the federal judiciary as remarkably dangerous because of the possibility that a tipping point of no …
Appellate Review Of Racist Summations: Redeeming The Promise Of Searching Analysis, Ryan Patrick Alford
Appellate Review Of Racist Summations: Redeeming The Promise Of Searching Analysis, Ryan Patrick Alford
Michigan Journal of Race and Law
This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth …
Gaining Momentum: A Review Of Recent Developments Surrounding The Expansion Of The Copyright Misuse Doctrine And Analylsis Of The Doctrine In Its Current Form, Neal Hartzog
Michigan Telecommunications & Technology Law Review
The United States intellectual property ("IP") system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public's ability to make use of and enjoy new ideas and …
Obvious To Whom? Evaluating Inventions From The Perspective Of Phosita, Rebecca S. Eisenberg
Obvious To Whom? Evaluating Inventions From The Perspective Of Phosita, Rebecca S. Eisenberg
Articles
In this Article, I consider the possibility of giving the USPTO input from currently active technological practitioners in evaluating the obviousness of claimed inventions. Such input could potentially serve three useful functions. First, it could improve the accuracy of USPTO decisionmaking by providing access to the perspective of actual practitioners as to the obviousness of inventions from the perspective of the hypothetical PHOSITA. Second, it could help the USPTO document the evidentiary basis for rejections that rest in part upon tacit knowledge within technological communities. Third, it could provide a quality control mechanism that would improve the credibility of USPTO …
Mistake Of Federal Criminal Law: A Study Of Coaltions And Costly Information, Erin O'Hara O'Connor, Richard S. Murphy
Mistake Of Federal Criminal Law: A Study Of Coaltions And Costly Information, Erin O'Hara O'Connor, Richard S. Murphy
Scholarly Publications
This article analyzes Supreme Court and other federal court cases, to explain the seemingly disparate incorporation of mistake of law excuses into federal criminal statutes. Most of the cases can be explained from an information cost perspective. If an easily separable subset of the regulated population cannot be induced to learn their legal obligations given credibly low prior probabilities and high information costs, they are excused from criminal liability. Moreover, when criminal statutes are vulnerable to constituent protest, courts require that enforcers increase awareness of the law through information subsidies rather than convicting the ignorant. At least with mistake of …
Risk, Courts, And Agencies, Clayton P. Gillette, James E. Krier
Risk, Courts, And Agencies, Clayton P. Gillette, James E. Krier
Articles
Public risks are precisely the risks that have recently captured the attention of the legal community and the world at large, in no small part because they give rise to such novel problems for lawyers and such grave apprehensions among lay people. Public risks have moved the legal system to relax doctrines--regarding, for example, standards of causation and culpability, burdens of proof, sharing of liability--that were designed to deal with the private risks that once dominated the landscape. And public risks have moved lay people to intensify their demands for risk control measures. These developments suggest that public risks are …