Law Commons^™

Revitalizing Biotechnological Advancement In The United States: Patent Eligibility Reform To Promote Innovation While Preserving Morality, Sydney Virtue

West Virginia Law Review

Patent protection has long been recognized as a key part of promoting innovation; however, current patent eligibility law in the United States often produces the exact opposite result. While the basic framework for patent eligibility is provided by the Patent Act, the United States Supreme Court has crafted several significant exceptions to patent eligibility—laws of nature, natural phenomena, and abstract ideas. These judicial exceptions have created a crisis in patent law and impeded biotechnological innovation, as they are too vague to be properly confined and carry tests that are too ambiguous for predictable application. To promote and retain world leadership …

Taking Liberties: The Supreme Court's New Hierarchy Of Rights And Its Victims, Richard B. Katskee

West Virginia Law Review

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

Remote Court Hearings (Past, Present, And Future): Arizona’S Next Steps For A New World To Enhance Access To Justice, Samuel A. Thumma, Marcus W. Reinkensmeyer

SMU Law Review Forum

In this article, the Arizona Supreme Court COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup (“Plan B Workgroup”) provides an update from its prior efforts, building on the Post-pandemic Recommendations: COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup, 75 SMU LAW REVIEW FORUM 1 (2022). This article focuses on the Plan B Workgroup’s February 2022 Recommended Remote and In-Person Hearings in the Arizona State Courts in the Post-Pandemic World and developments after those Recommendations. The article highlights the consideration and adoption of the Recommendations by the Arizona Judicial Council and the Arizona Supreme Court, …

Implementing The Inflation Reduction Act: Progress To Date And Risks From A Changing Administration, Romany M. Webb, Martin Lockman, Emma Shumway

Sabin Center for Climate Change Law

The Inflation Reduction Act of 2022 (“IRA”) is the largest investment in climate change mitigation and adaptation in American history. The IRA appropriates more than $142 billion to carry out activities designed to reduce greenhouse gas emissions and protect against the impacts of climate change. This includes up to $37 billion in appropriations for federal loans and loan guarantees, and nearly $105 billion allocated for grants, awards, and other direct spending by federal agencies. In addition, the IRA creates and expands a number of tax credit programs designed to support a broad range of climate-related activities, including investments in clean …

Front Matter

West Virginia Law Review

No abstract provided.

A Local Option: How Medicare Patients In Rural States Could Obtain Coverage For Weight Loss Medications, Emily Blackburn

West Virginia Law Review

There are currently three options when it comes to managing obesity: (1) making nutritional and activity changes; (2) weight loss medications; and (3) weight loss surgery. The existing limited options for managing obesity are even more restricted for Medicare patients. Making lifestyle changes might not be effective for a variety of reasons, including persistent food cravings and experiences of weight stigma from healthcare providers. To qualify for weight loss surgery, Medicare patients must satisfy several criteria in addition to the already specific weight loss surgery requirements. Additionally, weight loss surgery might not be the most viable option for the Medicare …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

University of Michigan Journal of Law Reform

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision that overruled Roe v. Wade’s constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy …

Animals In Cost-Benefit Analysis, Andrew Stawasz

University of Michigan Journal of Law Reform

Federal agencies’ cost-benefit analyses do not capture nonhuman animals’ (animals’) interests. This omission matters. Cost-benefit analysis drives many regulatory decisions that substantially affect billions of animals. That omission creates a regulatory blind spot that is untenable as a matter of morality and of policy.

This Article advances two claims related to valuing animals in cost-benefit analyses, dubbed the “Weak Claim” and the “Strong Claim.” The Weak Claim argues that agencies typically may value animals in cost-benefit analyses. Usually, no legal prohibitions exist, and such valuation is within agencies’ legitimate discretion. The Strong Claim argues that agencies often must do so …

Good Game (Ggez): How The Ftc, Cma, & Ec Had No Hope Of Stopping Microsoft's Activision Merger, Massimo Indolini

Journal of International Business and Law

No abstract provided.

Outsourcing Electricity Market Design, Joshua C. Macey

University of Chicago Law Review

A basic principle of virtually every regulation to improve grid reliability and reduce power sector emissions is that market participants change their behavior when regulations make it more expensive to engage in socially harmful activities. To give a concrete example, a carbon tax assumes that increasing the costs of emitting carbon dioxide will lead market participants to reduce energy consumption and switch to less carbon-intensive resources.

But this assumption does not apply to large parts of the electricity industry, where investor-owned utilities are often able to pass the costs of climate and reliability rules on to captive ratepayers. The underlying …

Mutually Assured Democracy: Cooperating Under The Compact Clause To Combat Partisan Gerrymandering, Samuel P. Leroy

University of Chicago Law Review

No abstract provided.

Felony Disenfranchisement And Voter Turnout: Randomized Trials In Iowa And Washington, Alexander Billy, J.J. Naddeo, Neel U. Sukhatme

Northwestern University Law Review

Prior to the 2022 midterm elections, we conducted large-scale randomized controlled trials in Iowa and Washington aimed at increasing voter turnout among newly enfranchised individuals with past felony convictions. Alongside national and grassroots partners, we designed and implemented experiments to ascertain the effectiveness of alternative outreach mechanisms, including targeted mailers and digital ads. We did not detect statistically significant or economically meaningful effects on voter registration or turnout; most observed effects were precise nulls. The absence of measured impact is likely attributed to low digital engagement with our online ads as well as extensive voter outreach already conducted by our …

Adr In The Ongoing Experiment Of American Law, Carli N. Conklin

Faculty Publications

To engage in the development of American law— past or present—is to engage in a great and ongoing experiment. It is an exercise of the imagination. And one place where American law has been most imaginative is in the field of alternative dispute resolution. It is an area of law that, in its creativity and emphasis on the person as a whole, is particularly well-suited to respond to the guiding question of our constitutional democracy: how might we live well together?

Vulnerable Consumers Left Behind In The Overdraft Fee Saga, Mary Claire Griffith-Mccrery

Marquette Benefits and Social Welfare Law Review

Attention on the arguable pervasiveness of overdraft fees has

been increasing in recent years. Overdraft programs were originally

offered to banks’ trusted, high-dollar customers on a discretionary

basis. Technology brought about debit cards and electronic payment

methods along with direct deposit and enhanced the complexity of

processing transactions. Some practices increased the likelihood of

overdrafts. For example, reordering transactions such that they post

to the account from the largest to smallest dollar amount received

distinct scrutiny—and is discouraged by regulators. Today, the majority

of overdraft fees are paid by economically disadvantaged, vulnerable

consumers; more specifically, by Black and Hispanic consumers. …

Political Freedom And Economic Constraints: The Political Setting For The Problem Of Twelve, John C. Coates

The University of Chicago Business Law Review

This essay outlines foundations of the current moment facing corporations and politics, which I have characterized as a new “problem of twelve”—that is, the concentration of power in the hands of a small number of index and private equity fund sponsors.1 Through the middle of the twentieth century, public companies dominated the U.S. economy and government. They owed their dominance to having been socially legitimated coming out of the Great Depression, a legitimation built on their affirmative war efforts and on the negative constraints of securities law, progressive taxation, labor unions, and operational regulation. From 1970 on, however, they changed …

The Power To Shape The “Political”, Amanda Shanor

The University of Chicago Business Law Review

The role of corporations in American life has become the focus of intense public and scholarly debate. How do corporations influence political outcomes? What norms or laws should structure corporate political participation? And who should decide what political interventions corporations make? These are vitally important questions that bear on how to deal with the pressing challenges of social media, money in politics, polarization, autocratic threats, and the influence of consolidated capital on governmental and democratic decision-making.

Most conversations about the role of corporations in politics, however, assume a definition of “political.” This key term is commonly taken for granted or …

Kalven For Corporations: Should For-Profit Corporations Adopt Public Statement Policies?, Anthony J. Casey, Tom Ginsburg

The University of Chicago Business Law Review

In the last few years, corporations have been called upon to take public positions on myriad issues unconnected to core business concerns. Demands for public statements may arise from various stakeholders, as well as from the general public and the media. Sometimes such statements are uncontroversial, but other times, firms find themselves in a no-win position, in which both silence and voice will offend some core constituency. Crafting meaningful public-facing statements becomes a major challenge.

In this article, we ask whether these corporations should adopt some form of express upfront policy on when they will and when they will not …

How Did Corporations Get Stuck In Politics And Can They Escape?, Jill E. Fisch, Jeff Schwartz

The University of Chicago Business Law Review

Corporations have always been involved in politics, but today is different. They are taking public positions, either directly or indirectly, on contested political and social issues unrelated to their businesses. In contrast to the conventional wisdom, we argue that this practice, which we term “corporate political posturing,” is problematic. First, it is of dubious value to the corporation and its stakeholders. Corporate political posturing often backfires, it does so unpredictably and potentially catastrophically, and it is particularly susceptible to agency costs. Second, it is harmful to society. The fundamental problem is that corporations are institutionally ill-equipped to take center stage …

Corporate Participation In Social Debates, Anna Toniolo

The University of Chicago Business Law Review

Corporations are increasingly wading into social and political matters that are unrelated to their business operations. This Paper empirically investigates corporate participation in social debates through the corporate response to Dobbs, the Supreme Court’s decision overturning the constitutional right to abortion.

First, the Paper identifies and examines the public companies that reacted to the reversal of Roe v. Wade (“Reacting Companies”). Only a few corporations reacted. On the one side, they tend to be large, with sizeable workforces, concentrated in consumer-facing and tech industries, and headquartered in states with no restrictions on abortion rights. On the other side, they tend …

The Surprising Survival—So Far—Of The Corporate Contribution Ban, Richard Briffault

The University of Chicago Business Law Review

No abstract provided.

Lawbreaking As Lawmaking, Michael S. Kang

The University of Chicago Business Law Review

No abstract provided.

Nonprofit Corporations & Politics: The Entity/Coordination Tension, Lloyd Hitoshi Mayer

The University of Chicago Business Law Review

Federal tax law treats separate nonprofit corporations as distinct legal entities for almost all purposes, in common with most other areas of law. With respect to political activity, this means that one nonprofit corporation’s lobbying or election-related actions are generally not attributed to another nonprofit corporation. This is the case even if the two entities have overlapping or even identical boards of directors. It is also the case even if the two entities collaborate regarding their respective activities and share employees, facilities, outside vendors, and other resources, as long as the entities reasonably allocate the costs for those shared resources. …

Private Equity Investment In Health Care And Ineffective Antitrust Regulations, Sofia Gracias

The University of Chicago Business Law Review

The corporatization of health care in the United States has forced us to confront society’s moral expectations of the industry, which serves uniquely vulnerable consumers. Health care has become increasingly more lucrative, attracting private equity (“PE”) investment, specifically in private physicians’ practices. Physicians find PE transactions appealing because physicians have difficulty competing with large hospital systems and complying with expansive regulatory requirements. The attention given by PE to health care has raised concerns regarding the tension between the expected priorities of PE firms and health care. Additionally, the nature of PE investments through roll-ups of smaller companies has regulators worried …

Free Markets And Free Speech: Understanding The Limits Of The Noerr-Pennington Doctrine, Mitsoo K. Patel

The University of Chicago Business Law Review

Based in First Amendment principles, the Noerr-Pennington doctrine immunizes parties petitioning the government from antitrust liability, even when such petitioning may be considered anticompetitive. Within the doctrine exists a narrower “sham exception” which eliminates Noerr-Pennington antitrust immunity when petitions are merely shams meant to interfere with a competitor’s business. The Supreme Court has examined the sham exception in two cases which have produced differing standards for when and how to apply it. As a result, circuit courts have had to grapple with this uncertainty and a circuit split has developed as they have disagreed on the proper approach to applying …

Brigham-Kanner Property Rights Journal, Volume 13, William & Mary Law School

Brigham-Kanner Property Rights Journal

Property and Propriety (or A Well-Ordered Society)

October 26-27, 2023

Panel 1: Property and Propriety (or A Well-Ordered Society): A Tribute to Gregory S. Alexander

Panel 2: Equity's Role in Defining Property Rights

Panel 3: Roundtable: Emerging Issues

Panel 4: The Restatement's Impact on Property Rights

Panel 5: The Scalability of Property Rights

Note

Going "Beyond" Mere Transformation: Warhol And Reconciliation Of The Derivative Work Right And Fair Use, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision — one that had been dormant in the lower court fair use jurisprudence — about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair …

The National Security Exception At The Wto: Should It Just Be A Matter Of When Members Can Avail Of It? What About How?, Mona Pinchis-Paulsen, Kamal Saggi, Petros C. Mavroidis

Faculty Scholarship

The GATT security exceptions were practically in hibernation until recently. The recent WTO disputes panel activity concerning such exceptions is characterized by a standard of review that places the accent on ‘when’ action should be taken and not so much on ‘what’ action should be taken. We see two problems with this construction. First, the ‘when’ might be a function of privileged information that those possessing it might be unwilling to divulge in a transparent manner. Second, national security is an amorphous concept, and unless we disaggregate it, it is impossible to pronounce the appropriateness of measures adopted to pursue …

A Blow To Reunification: How The Supreme Court Of North Carolina’S Ruling In In Re J.M. Eviscerates The Hopes Of Parents In Reunifying With Their Children, John J. Choi

North Carolina Law Review

No abstract provided.

Neutral Business Assistance And The Limits Of Complicity Under International Criminal Law, Nikola R. Hajdin

Michigan Journal of International Law

Business transactions between corporations and actors involved in grave human rights violations present significant challenges for the assessment of corporate criminal liability. This is particularly evident in cases of “neutral business assistance,” which refer to business conduct that appears legitimate on the surface and falls within day-to-day business operations but nonetheless contributes to the crime. An example of neutral business assistance is selling generic goods (for example, computer technology) legally at market rates, without the explicit intent to aid criminal activity, that increases the perpetrator’s capacity to carry out human rights violations. In such cases, discerning the point at which …

Aggressor State, Aggressor Individual, And What International Law Does/Should Protect, Nurbanu Hayır

Michigan Journal of International Law

This note examines the measures taken against Russian citizens in the context of the Russo-Ukrainian War in positive international law and analyzes the rationale for sanctioning individual citizens of an aggressor state. It questions whether the gravity of state aggression by Russia enables measures targeting individuals based solely on their Russian citizenship by investigating whether the blanket denial of asylum and imposition of travel bans for Russian citizens constitutes a breach of norms of international law. It further tests this citizenship link by turning to the legality of denationalization of pro-Russian Ukrainian citizens under international law. Building on this foundation, …