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Articles 1 - 10 of 10
Full-Text Articles in Social and Behavioral Sciences
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 …
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 …
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 …
Thinking, Big And Small, Stephen B. Burbank
Thinking, Big And Small, Stephen B. Burbank
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No abstract provided.
Alexander's Genius, Mitchell N. Berman
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 …
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.
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 …
Shleifer's Failure, Jonathan Klick
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 …