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Articles 1 - 25 of 25
Full-Text Articles in Law
Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp
Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp
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In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.
Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from antitrust …
Why Whistleblowers Lose: An Empirical And Qualitative Analysis Of State Court Cases, Nancy M. Modesitt
Why Whistleblowers Lose: An Empirical And Qualitative Analysis Of State Court Cases, Nancy M. Modesitt
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This Article was originally intended to be an analysis of the propriety, or impropriety, of the doctrines most commonly used by courts to decide employees’ whistleblowing retaliation claims against employers. However, upon conducting initial research, it quickly became apparent that there was very little data available on whistleblowing cases. Unlike employment discrimination cases, where several empirical studies have been conducted, there is only one empirical analysis of whistleblower claims, which focused solely on outcomes in the federal administrative process for claims brought under the Sarbanes-Oxley Act (SOX). That study revealed that whistleblowers fare poorly for a number of reasons, but …
The Normative Legitimacy Of International Courts, Nienke Grossman
The Normative Legitimacy Of International Courts, Nienke Grossman
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This Article’s objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both …
The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas
The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas
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This essay, written for a symposium at Duquesne Law School entitled Plea Bargaining After Lafler and Frye, offers thoughts on how lawyers could learn from doctors’ experience in catching and preventing medical errors and aviation experts’ learning from airplane crashes and near misses. It also expresses skepticism about the efficacy of judges’ ex post review of ineffective assistance of counsel, but holds out more hope that public-defender organizations, bar associations, probation officers, sentencing judges, sentencing commissions, and line and supervisory prosecutors can do much more to prevent misunderstanding and remedy ineffective bargaining advice in the first place.
The Fixable Flaws Of America's Civil Justice System, James Maxeiner
The Fixable Flaws Of America's Civil Justice System, James Maxeiner
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No abstract provided.
Competition Policy And The Scope Of Intellectual Property Protection, Herbert J. Hovenkamp
Competition Policy And The Scope Of Intellectual Property Protection, Herbert J. Hovenkamp
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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 …
Harm To Competition Or Innovation, Herbert J. Hovenkamp
Harm To Competition Or Innovation, Herbert J. Hovenkamp
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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 …
Innovation And Competition Policy, Chapter 6 (2d Ed): Restraints On Innovation, Herbert J. Hovenkamp
Innovation And Competition Policy, Chapter 6 (2d Ed): Restraints On Innovation, Herbert J. Hovenkamp
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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 …
Complementary Products And Processes - The Law Of Tying, Herbert J. Hovenkamp
Complementary Products And Processes - The Law Of Tying, Herbert J. Hovenkamp
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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 …
International Decisions: Territorial And Maritime Dispute (Nicaragua V. Colombia), Nienke Grossman
International Decisions: Territorial And Maritime Dispute (Nicaragua V. Colombia), Nienke Grossman
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No abstract provided.
Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp
Extraterritorial Criminal Jurisdiction Under The Antitrust Laws, Herbert J. Hovenkamp
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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 …
Bulk Misdemeanor Justice, Stephanos Bibas
Bulk Misdemeanor Justice, Stephanos Bibas
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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 …
Alexander's Genius, Mitchell N. Berman
Thinking, Big And Small, Stephen B. Burbank
Thinking, Big And Small, Stephen B. Burbank
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No abstract provided.
Litigating Toward Settlement, Christina L. Boyd, David A. Hoffman
Litigating Toward Settlement, Christina L. Boyd, David A. Hoffman
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Civil litigation typically ends when the parties compromise. While existing theories of settlement primarily focus on information exchange, we instead examine how motion practice, especially non-discovery motions, can substantially shape parties’ knowledge about their cases and thereby influence the timing of settlement. Using docket-level federal district court data, we find a number of strong effects regarding how motions can influence this process, including that the filing of a motion significantly speeds case settlement, that granted motions are more immediately critical to settlement timing than motions denied, and that plaintiff victories have a stronger effect than defendant victories. These results provide …
Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman
Coercion, Compulsion, And The Medicaid Expansion: A Study In The Doctrine Of Unconstitutional Conditions, Mitchell N. Berman
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The Supreme Court’s decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act produced three main holdings concerning two critical provisions of the Act. The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance. The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. By a vote of 7-2, the Court struck down this provision as an impermissible condition on …
The Impact Of Codification On The Judicial Development Of Copyright, Christopher S. Yoo
The Impact Of Codification On The Judicial Development Of Copyright, Christopher S. Yoo
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Despite the Supreme Court’s rejection of common law copyright in Wheaton v. Peters and the more specific codification by the Copyright Act of 1976, courts have continued to play an active role in determining the scope of copyright. Four areas of continuing judicial innovation include fair use, misuse, third-party liability, and the first sale doctrine. Some commentators have advocated broad judicial power to revise and overturn statutes. Such sweeping judicial power is hard to reconcile with the democratic commitment to legislative supremacy. At the other extreme are those that view codification as completely displacing courts’ authority to develop legal principles. …
A Market For Justice: A First Empirical Look At Third Party Litigation Funding, David S. Abrams, Daniel L. Chen
A Market For Justice: A First Empirical Look At Third Party Litigation Funding, David S. Abrams, Daniel L. Chen
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The alienability of legal claims holds the promise of increasing access to justice and fostering development of the law. While much theoretical work points to this possibility, no empirical work has investigated the claims, largely due to the rarity of trading in legal claims in modern systems of law. In this paper we take the first step toward empirically testing some of these theoretical claims using data from Australia. We find some evidence that third-party funding corresponds to an increase in litigation and court caseloads. Cases with third-party funders are more prominent than comparable ones. While third-party funding may have …
Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii
Valid Rule Due Process Challenges: Bond V. United States And Erie’S Constitutional Source, Kermit Roosevelt Iii
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This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view—i.e., that law does not exist without a lawmaker—it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without … law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process; modern federalism …
Unenforceability, Lee Petherbridge Ph.D., Jason Rantanen, R. Polk Wagner
Unenforceability, Lee Petherbridge Ph.D., Jason Rantanen, R. Polk Wagner
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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 …
Shleifer's Failure, Jonathan Klick
Managerial Judging And Substantive Law, Tobias Barrington Wolff
Managerial Judging And Substantive Law, Tobias Barrington Wolff
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The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.
In this Article, I examine the interface between substantive law and managerial …
What Ed Cooper Has Taught Me About The Realities And Complexities Of Appellate Jurisdiction And Procedure, Catherine T. Struve
What Ed Cooper Has Taught Me About The Realities And Complexities Of Appellate Jurisdiction And Procedure, Catherine T. Struve
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No abstract provided.
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman
On What Distinguishes New Originalism From Old: A Jurisprudential Take, Mitchell N. Berman
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No abstract provided.
Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas
Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas
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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 …