Law Commons^™

Competition Policy And The Scope Of Intellectual Property Protection, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …

The Wires Go To War: The U.S. Experiment With Government Ownership Of The Telephone System During World War I, Michael A. Janson, Christopher S. Yoo

All Faculty Scholarship

One of the most distinctive characteristics of the U.S. telephone system is that it has always been privately owned, in stark contrast to the pattern of government ownership followed by virtually every other nation. What is not widely known is how close the United States came to falling in line with the rest of the world. For the one-year period following July 31, 1918, the exigencies of World War I led the federal government to take over the U.S. telephone system. A close examination of this episode sheds new light into a number of current policy issues. The history confirms …

Striking The Right Balance: Investor And Consumer Protection In The New Financial Marketplace: Introduction, Lisa Fairfax, Arthur E. Wilmarth Jr

All Faculty Scholarship

On March 2, 2012, The George Washington University Law School's Center for Law, Economics & Finance and The George Washington Law Review jointly hosted a symposium entitled "Striking the Right Balance: Investor and Consumer Protection in the New Financial Marketplace."' The symposium focused on two principal topics. First, participants analyzed the impact of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") on investors and consumers in three areas of federal regulation-securities markets, derivatives markets, and consumer financial products. Second, the symposium evaluated the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley") on its tenth anniversary and considered whether Sarbanes-Oxley's legacy might …

Property Lost In Translation, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

The world is full of localized, non-standard property regimes that co-exist alongside state property laws. This Article provides the first comprehensive look at the phenomenon of localized property systems, and the difficulties that necessarily attend the translation of localized property rights.

Rather than survey the numerous localized property systems in the world, this Article explores the common features of the interaction between localized and state property systems. All localized property systems entail translation costs with the wider state property systems around them. Translation costs result from incompatibilities, as well as information and enforcement costs. Focusing on translation costs, the Article …

Rabban's Law's History, Herbert J. Hovenkamp

All Faculty Scholarship

This is a brief review of David Rabban's new book: Law's History: American Legal Thought and the Transatlantic Turn to History (Cambridge, 2013).

Poisoning The Next Apple? The America Invents Act And Individual Inventors, David S. Abrams, R. Polk Wagner

All Faculty Scholarship

The Leahy-Smith America Invents Act, the most significant patent law reform effort in two generations, has a dark side: It seems likely to decrease the patenting behavior of small inventors, a category which occupies special significance in American innovation history. In this paper we empirically predict the effects of the major change in the law: a shift in the patent priority rules from the United States’ traditional “first-to-invent” system to the predominant “first-to-file” system. While there has been some theoretical work on this topic, we use the Canadian experience with a similar change as a natural experiment to shed …

Criminal (In)Justice And Democracy In America, Stephanos Bibas

All Faculty Scholarship

This essay responds to Nicola Lacey’s review of my recent book The Machinery of Criminal Justice (Oxford Univ. Press 2012). Lacey entirely overlooks the book’s fundamental distinction between making criminal justice policy wholesale and adjudicating deserved punishment at the retail level, in individual cases, which is quite consistent with keeping but tempering rules. She also undervalues America’s deep commitments to federalism, localism, and democratic self-government and overlooks the related problem of agency costs in criminal justice. Her top-down approach colors her desire to pursue equality judicially, to the exclusion of the political branches. Finally, Lacey denigrates the legitimate roles of …

Neuroscience And The Future Of Personhood And Responsibility, Stephen J. Morse

All Faculty Scholarship

This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform of …

Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp

All Faculty Scholarship

The Ninth Circuit may soon consider whether challenges to antitrust activity that occurs abroad must invariably be addressed under the rule of reason, which will make criminal prosecution difficult or impossible.

When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of …

The Classical American State And The Regulation Of Morals, Herbert J. Hovenkamp

All Faculty Scholarship

The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. …

Copyright Infringement Markets, Shyamkrishna Balganesh

All Faculty Scholarship

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement — that copyright law simultaneously grants authors in order to render its exclusive rights operational — has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright law and policy rarely ever consider the possibility of an acquisition or investment market emerging for actionable copyright claims, and the advantages that such a market might hold for copyright’s …

Gandhi And Copyright Pragmatism, Shyamkrishna Balganesh

All Faculty Scholarship

Mahatma Gandhi is revered the world over for his views on freedom and non-violence, ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly believed to have been a moral perfectionist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with the institution of copyright law during his lifetime — as a writer, editor, and publisher — his approach routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced, internal understanding of the institution and its conflicting normative goals, Gandhi’s thinking …

Bulk Misdemeanor Justice, Stephanos Bibas

All Faculty Scholarship

This short essay responds to Alexandra Natapoff’s article Misdemeanors, which shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. The prime culprit in Natapoff’s story is the hidden, informal discretion that police officers enjoy to arrest, charge, and effect convictions, abetted by prosecutors’ and judges’ abdication and defense counsel’s absence or impotence. The roots of the problem she identifies, I argue, go all the way down to the system’s professionalization and mechanization. Given the magnitude of the problem, Natapoff’s solutions are surprisingly half-hearted, masking the deeper structural problems that demand …

Economic And Legal Arguments In Ppl V. Commissioner, Michael S. Knoll

All Faculty Scholarship

In late February 2013, the U.S. Supreme Court will hear oral argument in PPL Corp. v. Commissioner. The Court took that case, which involves a claim by a U.S. corporation for foreign tax credits for taxes paid in accordance with the 1997 U.K. Windfall Profit Tax Act, in order to resolve a conflict between the Third Circuit, which denied the credit in PPL, and the Fifth Circuit, which allowed the credit in Entergy Corp. v. Commissioner. Nominally, the U.K. Act imposed a tax on recently privatized regulated companies of 23 percent of the difference between their estimated …

The Reality Of Moral Imperatives In Liberal Religion, Howard Lesnick

All Faculty Scholarship

This paper uses a classic one-liner attributed to Dostoyoevski’s Ivan Karamozov, "Without God everything is permitted," to explore some differences between what I term traditional and liberal religion. The expansive connotations and implications of Ivan’s words are grounded in the historic association of wrongfulness and punishment, and in a reaction against the late modern challenge to the inexorability of that association, whether in liberal religion or in secular moral thought. The paper argues that, with its full import understood, Ivan’s claim begs critical questions of the meaning and source of compulsion and choice, and of knowledge and belief regarding the …

Fukushima: Catastrophe, Compensation, And Justice In Japan, Eric Feldman

All Faculty Scholarship

Well before the Fukushima disaster of March 11, 2011, governments in the developed world struggled with victim compensation in cases of environmental contamination, harms caused by pharmaceutical products, terrorist attacks, and more. All of those are important precedents to Fukushima, but none of them approach the breadth of harms resulting from the triple disaster of huge earthquake, massive tsunami, and nuclear meltdown now known in Japan as 3/11. With close to 20,000 people dead or missing, one million homes fully destroyed or seriously damaged, and 100,000 people displaced, getting those whose lives were affected by the events in Fukushima back …

Mandating Board-Shareholder Engagement?, Lisa Fairfax

All Faculty Scholarship

This Article not only argues that corporations must be encouraged to enhance the level of communication between shareholders and the board, but also maintains that the benefits of increased engagement are significant enough that we should consider developing standards for incentivizing, if not mandating, more robust board-shareholder engagement for corporations that fail to respond to such encouragement. In the last several years, shareholders not only have gained increased authority over corporate elections and governance matters, but also have demonstrated a willingness to use that authority to challenge, and even reject, management policies and practices. Shareholders also have begun to demand …

Health Insurance, Employment, And The Human Genome: Genetic Discrimination And Biobanks In The United States, Eric A. Feldman, Chelsea Darnell

All Faculty Scholarship

Does genetic information warrant special legal protection, and if so how should it be protected? This essay examines the most recent (and indeed only) significant effort by the US government to prohibit genetic discrimination, the Genetic Information Nondiscrimination Act (GINA). We argue that the legislation is unlikely to have the positive impact sought by advocates of genetic privacy and proponents of biobanks. In part, GINA disappoints because it does too little. Hailed by its promoters as “the first civil rights act of the 21^st century,” GINA’s reach is in fact quite modest and its grasp even more so. But …

Four Distinctions That Glanville Williams Did Not Make: The Practical Benefits Of Examining The Interrelation Among Criminal Law Doctrines, Paul H. Robinson

All Faculty Scholarship

While Glanville Williams was a pioneer in his time, he remained quite mainstream when it came to the framework for organizing criminal law doctrines. His books were influential and he could have helped reshaped that framework but was content to leave it as essentially that which evolved at common law, even though many improvements could have be made. For example, he was well aware of the justification-excuse distinction but rejected it as an organizing principle, not because he did not see the distinction as rational, but because he did not see it as having practical value.

This essay attempts to …

Regulation Fd: An Alternative Approach To Addressing Information Asymmetry, Jill E. Fisch

All Faculty Scholarship

This chapter traces the development of the SEC’s use of Regulation Fair Disclosure (FD) to address information asymmetry in the securities markets. The chapter describes the SEC’s developing enforcement policy and notes, in particular, the SEC’s efforts, through its selection and settlement of Regulation FD cases, to provide guidance to corporations and corporate officials about areas of key concern. The chapter concludes by highlighting current areas of particular importance, including disclosure of information through private meetings and the implications of technological innovations such as the internet and social media. The chapter is forthcoming in Research Handbook on Insider Trading (Stephen …

Unenforceability, Lee Petherbridge Ph.D., Jason Rantanen, R. Polk Wagner

All Faculty Scholarship

The patent doctrine of inequitable conduct—which allows a patent to be held unenforceable on the basis of misbehavior by the applicant during patent prosecution—has been the subject of intense criticism from the bench and bar alike. And yet to date there has been no systematic attempt to determine whether the doctrine is or is not working as theorized. This study fills that gap. We evaluate the performance of the inequitable conduct doctrine with a novel methodological approach: by empirically characterizing the differences between patents found unenforceable and several other types of patents (unlitigated, litigated, invalid, obvious, and underdisclosed), we use …

A Good Enough Reason: Addiction, Agency And Criminal Responsibility, Stephen J. Morse

All Faculty Scholarship

The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ‘disease’ or ‘moral weakness’. It then turns to the criteria for criminal responsibility and shows that the criteria for criminal responsibility, like the criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ‘translated’ into the law’s folk …

Why Women's Leadership Is The Cause Of Our Time, Rangita De Silva De Alwis

All Faculty Scholarship

Women continue to be underrepresented in leadership positions throughout the world. Yet, studies show that the exclusion of women from politics and public service negatively impacts the public good. Identifying women's leadership as the economic and moral imperative of our time, this Article explores the way in which greater representation of women in leadership positions yields beneficial results for both women and men, as well as social and economic progress. By examining the reasons for the substantial barriers women face in obtaining such positions, including the masculinization of politics, gendered caregiving responsibilities, and gender violence, this Article concludes that unless …

The Psychology Of Contract Precautions, David A. Hoffman, Tess Wilkinson-Ryan

All Faculty Scholarship

This research tests the intuition that parties to a contract approach each other differently before the contract is formed than they do once it is finalized. We argue that one of the most important determinants of self-protective behavior is whether the promisee considers herself to be in negotiations or already in an ongoing contract relationship. That shift affects precaution-taking even when it has no practical bearing on the costs and benefits of self-protection: the moment of contracting is a reference point that frames the costs and benefits of taking precautions. We present the results of three questionnaire studies in which …

Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not …

Natural Law & Lawlessness: Modern Lessons From Pirates, Lepers, Eskimos, And Survivors, Paul H. Robinson

All Faculty Scholarship

The natural experiments of history present an opportunity to test Hobbes' view of government and law as the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet the wide variety of situations show common patterns among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and a commitment to fairness and justice, although both can be subverted in certain predictable ways. The absent-law situations also …

Shareholders And Social Welfare, William W. Bratton, Michael L. Wachter

All Faculty Scholarship

This article addresses the question whether (and how) the shareholders matter for social welfare. Answers to the question have changed over time. Observers in the mid-twentieth century believed that the socio-economic characteristics of real world shareholders were highly pertinent to social welfare inquiries. But they went on to conclude that there followed no justification for catering to shareholder interest, for shareholders occupied elite social strata. The answer changed during the twentieth century’s closing decades, when observers came to accord the shareholder interest a key structural role in the enhancement of economic efficiency even as they also deemed irrelevant the characteristics …

Retiree Out-Of-Pocket Healthcare Spending: A Study Of Consumer Expectations And Policy Implications, Allison K. Hoffman, Howell E. Jackson

All Faculty Scholarship

Even though most American retirees benefit from Medicare coverage, a mounting body of research predicts that many will face large and increasing out-of-pocket expenditures for healthcare costs in retirement and that many already struggle to finance these costs. It is unclear, however, whether the general population understands the likely magnitude of these out-of-pocket expenditures well enough to plan for them effectively. This study is the first comprehensive examination of Americans’ expectations regarding their out-of-pocket spending on healthcare in retirement. We surveyed over 1700 near retirees and retirees to assess their expectations regarding their own spending and then compared their responses …

Brain Overclaim Redux, Stephen J. Morse

All Faculty Scholarship

No abstract provided.