Law Commons^™

Standing Voting Instructions: Empowering The Excluded Retail Investor, Jill E. Fisch

All Faculty Scholarship

Despite the increasing importance of shareholder voting, regulators have paid little attention to the rights of retail investors who own approximately 30% of publicly traded companies but who vote less than 30% of their shares. A substantial factor contributing to this low turnout is the antiquated mechanism by which retail investors vote. The federal proxy voting rules place primary responsibility for facilitating retail voting in the hands of custodial brokers who have limited incentives to develop workable procedures, and current regulatory restrictions impede market-based innovation that incorporate technological innovations.

One of the most promising such innovations is standing voting instructions …

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new "inclusive regulation" can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.

Open Source, Modular Platforms, And The Challenge Of Fragmentation, Christopher S. Yoo

All Faculty Scholarship

Open source and modular platforms represent two powerful conceptual paradigms that have fundamentally transformed the software industry. While generally regarded complementary, the freedom inherent in open source rests in uneasy tension with the strict structural requirements required by modularity theory. In particular, third party providers can produce noncompliant components, and excessive experimentation can fragment the platform in ways that reduce its economic benefits for end users and app providers and force app providers to spend resources customizing their code for each variant. The classic solutions to these problems are to rely on some form of testing to ensure that the …

Comment To The Sec In Support Of The Enhanced Disclosure Of Patent And Technology License Information, Colleen Chien, Jorge L. Contreras, Carol Corrado, Stuart Graham, Deepak Hegde, Arti K. Rai, Saurabh Vishnubhakat

Historical and Topical Legal Documents

Intangible assets like IP constitute a large share of the value of firms, and the US economy generally. Accurate information on the intellectual property (IP) holdings and transactions of publicly-traded firms facilitates price discovery in the market and reduces transaction costs. While public understanding of the innovation economy has been expanded by a large stream of empirical research using patent data, and more recently trademark information this research is only as good as the accuracy and completeness of the data it builds upon. In contrast with information about patents and trademarks, good information about IP licensing is much less publicly …

Space For Local Content Policies And Strategies, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper explores both the role that local content measures can play in advancing sustainable development, and the impact that trade and investment treaties concluded over the past 20 years have had and will continue to have on the ability of governments to employ those tools. Certain local content measures had been restricted under the WTO due to wide agreement by negotiating parties that their costs outweigh their benefits. But the WTO also left a number of local content measures in governments’ policy toolboxes. As is discussed in this paper, however, that is changing, with the range of permissible actions …

Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman

Scholarly Articles

The Supreme Court’s 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court unanimously rejected the “general rule” that a prevailing patentee is entitled to an injunction, instead holding that lower courts must apply a four-factor test before granting such relief. Ten years later, however, significant questions remain regarding how this four-factor test is being applied, as there has been little rigorous empirical examination of …

El Ineficiente Diseño De La Legislación Concursal Española: Una Propuesta De Reforma A Partir De La Experiencia Comparada Y De Un Análisis Económico Del Derecho Concursal [The Inefficient Design Of The Spanish Bankruptcy Act: A Proposal To Enhance The Attractiveness Of The Spanish Bankruptcy Regime Based On An Economic And Comparative Analysis Of Insolvency Law] In Spanish, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Spain has one of the world´s lowest business bankruptcy rates (that is, number of business bankruptcies per firm). Some authors have argued that the low usage of bankruptcy procedures in Spain is due to a ‘cultural’ problem faced by Spanish entrepreneurs. According to this hypothesis, the lack of a ‘bankruptcy culture’ makes Spanish entrepreneurs to be afraid of the use of the bankruptcy system. In this paper, however, I advocate for a totally different hypothesis. In my opinion, the low rate of business bankruptcies in Spain is not due to a ‘cultural’ problem but to an institutional one. Namely, I …

Innovation Prizes In Practice And Theory, Michael J. Burstein, Fiona Murray

Faculty Articles

Innovation prizes in reality are significantly different from innovation prizes in theory. The former are familiar from popular accounts of historical prizes like the Longitude Prize: the government offers a set amount for a solution to a known problem, like £20,000 for a method of calculating longitude at sea. The latter are modeled as compensation to inventors in return for donating their inventions to the public domain. Neither the economic literature nor the policy literature that led to the 2010 America COMPETES Reauthorization Act — which made prizes a prominent tool of government innovation policy — provides a satisfying justification …

An International Legal Framework To Address Antimicrobial Resistance, Kevin Outterson, Steven J. Hoffman, John-Arne Rottingen, Otto Cars, Charles Clift, Fiona Rotberg, Göran Tomson, Anna Zorzet, Zain Rizvi

Faculty Scholarship

Antimicrobial resistance is a growing threat to global health. Currently it accounts for approximately 700,000 deaths annually, but is predicted to cause as many as 10,000,000 deaths by 2050 if nothing is done to address it. To effectively deal with this problem three areas must be addressed simultaneously: access, conservation, and innovation. However, solving issues of access, conservation and innovation at the same time requires new coordination and financing mechanisms, some of which must be organized globally. This bulletin outlines the possible role that a binding international legal framework can play in the fight against antimicrobial resistance.

Intellectual Property Law Hybridization, Clark D. Asay

Faculty Scholarship

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time.

In this Article, I argue that it is time to partially breach this traditional divide. …

Tesla, Dealer Franchise Laws, And The Politics Of Crony Capitalism, Daniel A. Crane

Articles

Public choice theory has long proclaimed that business interests can capture regulatory processes to generate economic rents at the expense of consumers. Such political exploitation may go unnoticed and unchallenged for long time periods because, though the rents are captured by a relatively small number of individuals or firms, the costs are widely diffused over a large number of consumers. The triggering event to expose and mobilize opposition to the regulatory capture may not arise until a new technology seeks to challenge the incumbent technology, thus creating a motivated champion to expose and oppose the regulatory capture and advocate for …

Current Issues In Patent Law And Policy, Michael J. Meurer

Faculty Scholarship

Patent law and policy have received a surprising amount of attention from courts and policymakers in recent years. This attention is warranted because innovation policy is critical in determining the pace of innovation and the rate of economic growth. The reform proposals pending before Congress are motivated by widespread reports of abusive patent assertions and fears that patents sometimes stifle innovation. I favor most of the pending reforms and worry that our patent system, on balance, discourages innovation. But I part company from most reform proponents who focus on harms caused by the frivolous patent litigation mounted by many "non-practicing …

Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford

UF Law Faculty Publications

The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection …

Optimizing Government For An Optimizing Economy, Cary Coglianese

All Faculty Scholarship

Much entrepreneurial growth in the United States today emanates from technological advances that optimize through contextualization. Innovations as varied as Airbnb and Uber, fintech firms and precision medicine, are transforming major sectors in the economy by customizing goods and services as well as refining matches between available resources and interested buyers. The technological advances that make up the optimizing economy create new challenges for government oversight of the economy. Traditionally, government has overseen economic activity through general regulations that aim to treat all individuals equally; however, in the optimizing economy, business is moving in the direction of greater individualization, not …

Motivating Without Mandates: The Role Of Voluntary Programs In Environmental Governance, Cary Coglianese, Jennifer Nash

All Faculty Scholarship

For the last several decades, governments around the world have tried to use so-called voluntary programs to motivate private firms to act proactively to protect the environment. Unlike conventional environmental regulation, voluntary programs offer businesses flexibility to adopt cost-effective measures to reduce environmental impacts. Rather than prodding firms to act through threats of enforcement, they aim to entice firms to move forward by offering various kinds of positive incentives, ranging from public recognition to limited forms of regulatory relief. Despite the theoretical appeal of voluntary programs, their proper role in government’s environmental toolkit depends on the empirical evidence of how …

Investment Accelerators, Brad Bernthal

Publications

This Article documents and explains the legal and extralegal dimensions of Investment Accelerator (IA) systems. Accelerators are a new class of institution that supports entrepreneurs and early stage startups. Investment Accelerators take an ownership stake in companies that participate in an intensive, time-limited program. Interviews reveal the surprising extent to which parties in many Investment Accelerators exchange economic value in the absence of formal agreement. Startups share proprietary information with highly accomplished mentors who, in turn, contribute their time and connections without direct compensation. This under-contracted and informal arrangement raises concerns about opportunism. Data from an original investigation presents a …

Telecommunications: Competition Policy In The Telecommunications Space, Gene Kimmelman, Maureen K. Ohlhausen, Michael O’Rielly, Christopher S. Yoo, Stephen F. Williams

All Faculty Scholarship

In today’s rapidly evolving telecommunications landscape, the development of new technologies and distribution platforms are driving innovation and growth at a breakneck speed across the Internet ecosystem. Broadband connectivity is increasingly important to our civil discourse, our economy, and our future. What is the proper role of government in facilitating robust investment and competition in this critical sector? When technology companies constantly have to reinvent themselves and adapt to survive – what role should government play? This panel of experts at the Federalist Society’s 2014 National Lawyers Convention discussed the current regulatory environment and how government policies – particularly regarding …

Pluralizing The 'Sharing' Economy, Erez Aloni

All Faculty Publications

The so-called sharing economy presents one of the most important and controversial regulatory dilemmas of our time — yet, surprisingly, it remains undertheorized. This Article supplies needed analysis. Specifically, the Article offers a regulatory model that distinguishes between two separate kinds of transactions: conventional economic transactions and those that rely on temporary access to goods and services that would otherwise go underutilized (what I call “access-to-excess” transactions). The regulatory regime that this Article proposes would distinguish between true access-to-excess transactions and conventional transactions. The model is rooted in a version of pluralist theory that posits that the state is responsible …

Keynote: Encouraging This Particular Form Of (Very Fun) Madness - Roles For Deans & Faculty Members, Martin J. Katz, Phoenix X.F. Cai

Sturm College of Law: Faculty Scholarship

This keynote address discusses the ways in which faculty and administrators can facilitate experiential learning in transactions classes.

The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson

Faculty Scholarship

Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual's income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant's credit history.

This deployment of subnational power is not new to civil rights. Many of the laws and regulatory frameworks that are now core to the …

Where Tradition Meets Innovation: Providing A Practice-Oriented Curriculum, Andrea Lyon

Law Faculty Publications

No abstract provided.

What Will It Take To Address The Global Threat Of Antibiotic Resistance?, Kevin Outterson, Steven J. Hoffman

Faculty Scholarship

Antibiotic resistance is a global threat that may be beyond the capacity of any one country to address. We assess the three primary issues (access, conservation and innovation) and discuss which require higher levels of global coordination.

Ip As Metaphor, Brian L. Frye

Law Faculty Scholarly Articles

Everybody hates intellectual property trolls. They are parasites, who abuse intellectual property by forcing innovators to pay an unjust toll. Even worse are intellectual property pirates. They are thieves, who steal intellectual property by using it without the consent of its owner. By contrast, everybody loves innovators. They are farmers, entitled to reap what they have sown and enjoy the fruits of their labor.

But trolls, pirates, and farmers are metaphors. A "troll" abuses intellectual property only if its ownership or use of that intellectual property is unjustified, a "pirate" steals intellectual property only if the ownership of that intellectual …

Exclusionary And Diffusionary Levers In Patent Law, Colleen Chien

Faculty Publications

The patent system is built on the premise that exclusion leads to innovation. But a mounting body of evidence calls into question the assumption that “innovation by exclusion” – innovation based on excluding rivals– is the only, or even primary, way innovation happens today: nearly 50% of manufacturers got the idea for their most important new product from an outside source that shared it with them, 45-60% of patentees acquire patents to access the technology of others, and over 1,300 companies, including five of the ten top holders of patents, have pledged to share their patents with others. But because …

Agenda: Innovations In Managing Western Water: New Approaches For Balancing Environmental, Social, And Economic Outcomes, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Many aspects of western water allocation and management are the product of independent and uncoordinated actions, several occurring a century or more ago. However, in this modern era of water scarcity, it is increasingly acknowledged that more coordinated and deliberate decision-making is necessary for effectively balancing environmental, social, and economic objectives. In recent years, a variety of forums, processes, and tools have emerged to better manage the connections between regions, sectors, and publics linked by shared water systems. In this event, we explore the cutting edge efforts, the latest points of contention, and the opportunities for further progress.

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

All Faculty Scholarship

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.

This paper is an effort to assist courts …

How Can Law Firms Innovate, James Batham, Michele Destefano

Articles

No abstract provided.

Business Model Options For Antibiotics: Learning From Other Industries, Kevin Outterson, Ella Jaczynska, Jorge Mestre-Ferrandiz

Faculty Scholarship

As resistance to antibiotics continues to grow, there is a well-recognized misalignment between the clinical need for new antibiotics and the incentives for their development. The returns from investment in antibiotics research and development (R&D) are perceived as too small. Partly as a result, the number of large multinational companies researching antibiotics has fallen drastically in the past 20 years and few high-quality antibiotics have been developed.

In looking at the antimicrobial resistance (AMR) situation, we were aware that other industries have faced conceptually similar challenges and that they might offer helpful lessons and possible solutions that could be adapted …

Repairing The Broken Market For Antibiotic Innovation, Kevin Outterson, John H. Powers, Gregory W. Daniel, Mark B. Mcclellan

Faculty Scholarship

Multidrug-resistant bacterial diseases pose serious and growing threats to human health. While innovation is important to all areas of health research, it is uniquely important in antibiotics. Resistance destroys the fruit of prior research, making it necessary to constantly innovate to avoid falling back into a pre-antibiotic era. But investment is declining in antibiotics, driven by competition from older antibiotics, the cost and uncertainty of the development process, and limited reimbursement incentives. Good public health practices curb inappropriate antibiotic use, making return on investment challenging in payment systems based on sales volume. We assess the impact of recent initiatives to …

Ip Basics: Seeking Cost-Effective Patents, Thomas G. Field Jr.

Law Faculty Scholarship

This discussion briefly explores the range of intellectual property options in view of the nature of inventions and their market value, particularly for entrepreneurs. Specific strategies for controlling ever-increasing patent costs in the face of market uncertainty. It does not recommend that inventors prosecute patent applications themselves, lest they get much less than they pay for.