9873 research outputs found
Sort by
THE TAKINGS CLAUSE DOES NOT PREVENT THE UNITED STATES FROM SUPPORTING A PATENT WAIVER AT THE WTO BUT PREVENTS DOMESTIC IMPLEMENTATION OF THE WAIVER
Get PDFThe Biden Administration announced its support for the initiative at the World Trade Organization (WTO) to suspend patent rights protections for COVID-19 vaccines, in the hope of providing equitable and affordable access to the vaccines to low-income countries. Since then, domestic pharmaceutical companies have been voicing vociferous opposition, claiming that “[e]liminating IP protections undermines our global response to the pandemic and compromises safety.”2 Passing a patent waiver at the WTO means eligible member countries can opt to free themselves from the obligations to enforce qualifying patents, and anyone within those countries can accordingly practice the patents without infringement liability. It follows that the adoption of the waiver would impair American patentees’ rights in those eligible countries.
Americans, however, are protected by the Constitution of the United States, and the Takings Clause of the Fifth Amendment guards private property against unlawful seizure by the United States government. This Article examines the role the Takings Clause plays in prescribing United States actions committed to adopting and implementing a patent waiver, and concludes that the Takings Clause does not prevent the United States from supporting passage of the waiver at the WTO, but would prevent its domestic implementation if the United States were made an eligible country to invoke the waiver. The conclusion is consistent with the final waiver adopted by the WTO, where the United States is not an eligible country
Jury-Related Errors in Copyright
Get PDFCopyright law is surprisingly hard. Copyright does not do what laypeople think it does, nor do its terms mean what laypeople expect. Copyright also possesses systemic indeterminacy about what it protects and the extent of that protection. For laypeople, copyright law is decidedly “user-unfriendly.” Nonetheless, copyright law reserves for lay jurors its most-litigated, most difficult, and most consequential question at trial: whether works are “substantially similar” and thus infringing.Many have criticized this allocation because in the context of copyright law, juries effectively have the power to expand or contract owners’ rights with little oversight or correction. But blaming the jury obscures other systemic factors and overlooks mistakes made by judges and litigants (as well as juries). In short, don’t blame the jurors, blame the game. To evaluate and improve the jury’s role in copyright litigation, we must look at—but also beyond—the jury and consider systemic sources of error, starting with complexities built into copyright itself.This Article focuses on copyright’s jury per se and begins to bridge the gap between copyright scholarship and the methodologically diverse generalist jury literature. Numerous high-profile jury trials underscore the jury’s importance for copyright policy, yet scholars have neglected to consider the jury’s role in light of existing generalist scholarship. Jury-Related Errors in Copyright profiles copyright’s user-unfriendliness and explores its impact by examining cases involving jury-related errors. It proposes a framework for considering reforms, arguing that copyright law must be attuned to what juries need to accomplish their tasks (via a “jury-centric” approach) as well as heeding how juries’ verdicts effectuate—or distort—copyright’s policy aims (using a “system-centric” approach). More scholarship is needed to develop future reforms but this Article provides a necessary starting point by acknowledging copyright law’s current user-unfriendliness and highlighting the significant impact of jury-related errors
#MeToo in Prison
Get PDFFor American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment. For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison. Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.
PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice. And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis. Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic. This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm.
As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States. At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades. New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake.
Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group. The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff. It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons. This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm
A Transition to Retirement
Get PDFPerhaps this article will start you thinking about your own retirement, whether it’s around the corner or many years in the future. You can talk to financial advisers about pensions and health insurance. It’s also important to think about intangibles, like changing your professional identity and what you will miss about your work. You plan your other career moves (job to job, city to city); this transition is worth planning, too
Considering a Right to Repair Software
Get PDFThe right to repair movement aims to extend the usability of products by allowing a consumer (or a repair professional acting on the consumer’s behalf) to fix broken products. Implicitly, the movement’s focus has been on hardware—on the right to repair cars, tractors, and phones. But as more and more of the functionality of goods comes from software, it is important to consider whether we need a right to repair software. There are practical challenges to software repair. For example, fixing software is more difficult and treacherous than fixing hardware. Complicating matters further, more and more software is embedded in hardware or runs remotely from the cloud, making it difficult, if not impossible, to repair. A right to repair software would also push deep into conflicts with intellectual property rights because repairing software might infringe a copyright holder’s exclusive right to create and distribute derivative works, a patent holder’s right to exclude making and using an invention, or a trade secret holder’s right to protect valuable information.
This Article attempts to reframe the repair issue as it applies to software in two ways. First, it discusses how a robust conversation about software repair is already well underway as part of the software industry’s vigorous debate about the pros and cons of open source software. In other words, right to repair proponents do not need to start a new conversation about the right to repair software; they can and should join the ongoing discussions about open source software. Second, the Article discusses how the most salient issues related to software repair do not involve consumers’ ability to fix software bugs but, instead, their ability to get or refuse updates from software developers and to revert to a prior version of the software if the consumer does not like the updated version. Policymakers should focus on these issues as they consider a right to repair software
Electoral Sandbagging
Get PDFAn insidious tactic threatens elections across the United States. Some refer to it as a “bait and switch.” Others recognize a form of “election sabotage.” While the labels vary, the pattern is the same. First, an election official or other figure of authority consents to an error at an early stage of the election process. The actor then waits to see how the election unfolds. If the election results are favorable, the error slides into irrelevance. If not, that same actor refers back to the earlier error, now with indignity, and insists that it requires a late-stage disruption of the election process. The aim of this maneuver—a maneuver this Article terms “electoral sandbagging”—is to install a favored candidate into office. An effect is to imperil the election process from within.
This Article, the first to identify and examine this pattern, connects it to another phenomenon: sandbagging in the courtroom. There, Justice Scalia defined the practice as “suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error.” Unsurprisingly, judges have long recognized and denounced this tactic. Sandbagging in the election context warrants even stronger censure. Among other harms, electoral sandbagging fundamentally undermines the fairness of election proceedings and otherwise strikes at the heart of democratic governance. By exposing and contextualizing this growing phenomenon, this Article provides guidance for a path forward. In addition, by demonstrating how electoral sandbagging thrives in the shadows—its perpetuators dependent on dissembling and subterfuge—this Article helps to counteract its effects
Brief of Fourth Amendment Scholars as Amici Curiae in Support of Defendant-Appellant on the Good Faith Exception Issue, U.S. v. Holcomb, Ninth Circuit Court of Appeals Docket No. 23-469
Get PDFSUMMARY OF THE ARGUMENT
When the Fourth Amendment is violated by an unconstitutional search, the suppression of wrongfully obtained evidence (the exclusionary rule) is often the only viable remedy that might deter government overreach and provide some redress for the constitutional violation. Though the Supreme Court has long treated remedial mechanisms as separate from their underlying rights, Wolf v. Colorado, 338 U.S. 25 (1949), and while limited exceptions to the suppression requirement have existed for years, recent expansion of the “good faith exception” in the digital age imposes unprecedented threats to privacy and security.
A porous or expansive view of the good faith exception threatens to swallow the exclusionary rule entirely, undermining the Fourth Amendment rights of all people—whether guilty, innocent, or never accused of a crime. An ever-expanding version of the good faith exception, like the one endorsed by the district court below, means we are all more likely to have our digital data surveilled and to have no redress when that surveillance is unconstitutional.
This is no idle concern. Instead, as shown by our empirical study concerning its use, expansion of the good faith exception is pervasive and harmful to Fourth Amendment rights. If affirmed, the rationale of the court below would extend application of the good faith exception to the detriment of everyone’s constitutional rights. This Court should reject such a rule
Fast-Tracks and Prizes: A Multi-Pronged Approach to Incentivizing Green Technology Innovation
Get PDFFaced with the ever-worsening climate crisis, many nations—including the United States—have increasingly recognized the urgent need for rapid advancements in green, clean, and sustainable technologies. Patents play a fundamental role in incentivizing technological innovation, but the traditional patent process is too slow to match the urgency of the climate crisis. At the same time, the marketplace significantly undervalues green technology patents because they confer benefits to third parties not involved in the transaction (referred to as “positive externalities”). To address the urgency issue, patent “fast-track” programs have been implemented to speed up the patent application review process. To mitigate the positive externality issue, scholars have suggested patent prize systems may compensate for market failure. This Comment analyzes the green technology fast-track programs in the United States and proposes a method of combining the patent system with an “inventor’s choice” prize system to leverage the advantages of both systems to drive green technology innovation