Law Commons^™

Why Choose Ltas? An Empirical Study Of Ohio Manufacturer’S Contractual Choices Through A Bargaining Lens, Juliet P. Kostritsky, Jessica Ice

Faculty Publications

This paper contributes to recent scholarship regarding Long Term Agreements (LTAs) by providing empirical evidence that suppliers are more likely to undertake the costs of an LTA if the transaction requires significant capital expenditures or the potential for large sunk costs. Through a survey of a random group of 63 Ohio supplier/manufacturers, the paper explores why supplier/manufacturers with a full range of contractual and non-contractual solutions might choose one set of arrangements over others. It then seeks to link its findings to a broader theory of how parties bargain to solve durable problems under conditions of uncertainty, sunk costs and …

The Market For Software Innovation Through The Lens Of Patent Licenses And Sales, Colleen V. Chien

Faculty Publications

Software innovation is transforming the US economy. Yet our understanding of how patents and patent transactions support this innovation is limited, in part because of a lack of public information about patent licenses and sales. Claims about the patent marketplace, for example, extolling the virtues of intermediaries like non-practicing entities, or questioning the social utility of ex post patent licenses, tend not to be grounded in empirical evidence. This article brings much-needed data to the policy debate by analyzing transactional data from several proprietary databases of patent licenses and transfers, and reporting several novel findings. First I find that, despite …

Evidence Of The Military's Sexual Assault Blind Spot, Eric R. Carpenter

Faculty Publications

In response to the American military's perceived inability to handle sexual assault cases, many members of Congress have lost confidence in those who run the military justice system. Critics say that those who run the military justice system are sexist and perceive sexual assault cases differently than the public does. This article is the first to empirically test that assertion. Further, this is the first study to focus on the military population that matters – those who actually run the military justice system. This study finds that this narrow military population endorses two constructs that are associated with the acceptance …

Startups And Patent Trolls, Colleen Chien

Faculty Publications

While patent assertion entities (or patent “trolls”) have received a lot of attention, little of it has focused on the distributional impacts of their demands. The impact on PAEs on startups is crucial, because startups contribute to job creation and innovation, making them potential targets and sources of patents. To assess the impact of trolls on startups, I analyzed a comprehensive database of patent litigations from 2005 to the present, conducted a non-random survey of 223 tech company startups, and interviewed nearly twenty entities with relevant knowledge of startup patent issues.

I find that although large companies tend to dominate …

Reforming Software Patents, Colleen Chien

Faculty Publications

While many believe the patent system has hit a historic and unprecedented low, discontent with patents, and in particular with software patents, is nothing new. In 1966, a Presidential Commission recommended prohibiting software patents because of the PTO’s inability to vet them. In 1883, the Supreme Court railed against “speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax.” In 1836, the Ruggles Report documented how lax patent standards, “encourag[ed] fraudulent speculators in patent rights, deluging the entire …

The Consumer Bankruptcy Fee Study: Final Report, Lois R. Lupica

Faculty Publications

The Consumer Fee Study’s primary objective is to identify and monetize these costs of bankruptcy access through the analysis of quantitative and qualitative data gathered from court dockets and from professionals working within the bankruptcy system. We began the quantitative section with the hypothesis that following BAPCPA’s enactment, the cost of accessing the consumer bankruptcy system increased. We set out to determine the degree of increased costs, as well as to identify the specific policies and practices affecting these costs. Additionally, we endeavored to evaluate, with specificity, how diverse local procedures and guidelines impact the system’s processes and outcomes. Our …

An Empirical Analysis Of Collaborative Practice, John M. Lande

Faculty Publications

This article summarizes empirical research about Collaborative Practice, the Collaborative movement, its interaction with other parts of the dispute resolution field, and its impact on the field. It reviews studies of Collaborative Practice describing the individuals involved in Collaborative cases, how the process works, the operation of local practice groups, and the impact of Collaborative Practice on legal practice generally. Based on this analysis, it suggests an agenda for future research. Finally, it offers suggestions for constructive development of the Collaborative field.

Patent Amicus Briefs: What The Courts’ Friends Can Teach Us About The Patent System, Colleen Chien

Faculty Publications

Over the last two decades, more than a thousand amici, representing hundreds of organizations, companies, and individuals, have signed onto amicus briefs in over a hundred patent cases, many of them landmark decisions. This paper turns the spotlight on these “behind-the-scenes” actors in the patent system, combining theoretical insights with an empirical study of amicus briefs filed in patent cases over the last 20 years in an examination of patent interest groups, the positions they have advocated, and the effectiveness of their advocacy. Amicus filers appear to have been instrumental in shaping the courts’ agenda; the Supreme Court was seven …

Predicting Patent Litigation, Colleen Chien

Faculty Publications

Patent lawsuits are disruptive, unpredictable, and costly. The inability to anticipate patent litigation makes it practically uninsurable, exposes companies to late-stage suits, and drives companies to rapidly accumulate patents in order to ward off litigation. This article confronts this systemic problem, by examining the factors that lead a particular patent to be litigated – only around 1% of patents ever is. It relates the eventual litigation of a patent to earlier events in the patent’s life, including changes in ownership of the patent (assignments, transfers, and changes in owner size), continued investment in the patent (reexamination, maintenance fees), securitization of …

From Arms Race To Marketplace: The Complex Patent Ecosystem And Its Implications For The Patent System, Colleen Chien

Faculty Publications

For years, high-tech companies have amassed patents in order to deter patent litigation. Recently, a secondary market for patents has flourished, making it more likely that patents that would otherwise sit on the shelf will end up in the courtroom. This Article explores the current patent ecosystem, which includes both “arms race” and “marketplace” paradigms, in depth. I distinguish “patent-assertion entities,” entities that use patents primarily to obtain license fees rather than to support the development or transfer of technology, from other types of non-practicing entities. I contrast the patent arms race, whose goal is to provide entities with the …

Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen Chien

Faculty Publications

The International Trade Commission (ITC) provides a special forum for adjudicating patent disputes involving imports. It offers several advantages over United States district courts to patentees, including relaxed jurisdictional requirements, speed, and unique remedies. Unlike district courts, the ITC almost automatically grants injunctive relief to prevailing patentees, and does not recognize certain defenses to infringement. These features have been justified as needed to prosecute foreign infringers who would otherwise evade U.S. district courts. They have also led to charges that the ITC is protectionist and unfair to defendants and that it fosters inconsistency in U.S. patent law.

Based on an …

An Empirical Examination Of Product And Litigant-Specific Theories For The Divergence Between Nafta Chapter 19 And U.S. Judicial Review, Juscelino F. Colares

Faculty Publications

Empirical analysis of NAFTA panel review has shown that panels reverse US agency trade remedy determinations twice as often as US courts. Recent studies have eliminated case selection and other hypotheses as potential explanations for this divergence. In this article, Probit regressions show that case docket differences, such as type of import or litigant identity, also cannot account for this discrepancy. As NAFTA panels must apply the same law and standards of review as the US courts they replace, this divergence presents serious questions regarding US Congressional acquiescence to the operation of NAFTA panels and encourages discussion of the role …

Transactional Law In The Required Legal Writing Curriculum: An Empirical Study Of The Forgotten Future Business Lawyer, Louis N. Schulze Jr.

Faculty Publications

Legal Writing courses traditionally focus on litigation writing. The course usually includes assignments on writing interoffice memoranda, drafting trial or appellate briefs, and conducting oral arguments - all in the context of a lawsuit. But, how does this exclusive focus on litigation treat students with no interest in that subject? For future transactional lawyers, the dominance of litigation writing might seem to ignore their needs. Should they be learning how to draft contracts, create corporate documents, or write commercial leasing agreements? This Article examines whether legal writing courses, either in the first year of law school or later, sufficiently address …

Debtor Discharge And Creditor Repayment In Chapter 13, Scott F. Norberg, Andrew Velkey

Faculty Publications

Consumer bankruptcy filings hit another record high in 1998, with nearly 1.4 million consumers filing for bankruptcy relief. This trend sparked a debate in Congress about means-testing chapter 7 bankruptcy filings. Proponents of reform argued that it would curtail fraud and abuse. Opponents believed that consumer debt was swamping income growth, and that the deregulation of the consumer credit market had led to overgenerous lending and hence to more bankruptcies. This is an empirical study of whether filers for chapter 13 bankruptcy cases are abusing the system, or whether debtors are truly being swamped by debt in excess of their …