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Optimal remedies for patent infringement
Get PDFThis paper derives optimal remedies for patent infringement, examining damages awards and injunctions. The fundamental optimality condition that applies to both awards and injunctions equates the marginal static cost of intellectual property protection with the marginal “dynamic” benefit from the innovation thereby induced. When the social value of the patent is sufficiently high, the optimal award induces socially efficient investment by giving the innovator the entire social value of her investment
Policing the Boundaries of Whiteness: The Tragedy of Being “Out of Place” from Emmett Till to Trayvon Martin
Get PDFThis Article takes what many view as an extraordinary case about racial hatred from 1955, the Emmett Till murder and trial, and analyzes it against the Trayvon Martin killing and trial outcome in 2012 and 2013. Specifically, this Article exposes one important, but not yet explored similarity between the two cases: their shared role in policing the boundaries of whiteness as a means of preserving the material and the psychological benefits of whiteness. This policing occurred in a variety of forms, including: (1) maintaining white racial separation; (2) facilitating cross-class, white racial solidarity; (3) articulating blackness, and specifically black maleness, as a threat; and (4) regulating the presence and movement of Blacks in what sociologist Elijah Anderson has defined as “the white space.” This Article also delineates how the strategies, practices, and tactics for protecting whiteness and its attendant advantages and benefits have shifted from explicit actions in thwarting, punishing, and even violently resisting challenges to black racial subordination and white authority to ostensibly “race-neutral” actions that promote a type of thinking that legal scholar Ian Haney López calls “commonsense racism,” and that sustain a form of rationalizing racial inequities and injustices that sociologist Eduardo Bonilla-Silva refers to as “colorblind racism.” Ultimately, this Article demonstrates how the same race-based forces and the same racist tropes that undergirded the Till case in 1955 are still operating today, even as meaningful changes have occurred in the practice of racism in the country
Frozen Charters
Get PDFIn 2012, the New York Stock Exchange changed its policies to prevent brokers voting shares on corporate governance proposals where they had not received instructions from beneficial owners. Although the change was intended to protect investors and improve corporate governance, it has had the opposite effect: a significant number of U.S. public companies are no longer able to amend important parts of their corporate charters, despite the support of their boards of directors and overwhelming majorities of shareholders. Their charters are frozen./= / \u3e/= / \u3eThis paper provides the first empirical and policy analysis of the broker voting change and its significant unintended consequences. I provide empirical evidence that the broker voting change has resulted in the failure of more than fifty charter amendments at U.S. public companies, despite board approval and overwhelming shareholder support, and that hundreds more companies have their charters frozen as a result of the change. These costs substantially outweigh the negligible benefits of the broker voting change. I compare a number of solutions to address these problems, and identify several that would be preferable to the current approach
The Emergence of a Notion of Sovereignty over Territory in Roman Public Law
No full texthttps://scholarship.law.bu.edu/clark_speakers/1086/thumbnail.jp
Trusting Big Data Research
Get PDFAlthough it might puzzle or even infuriate data scientists, suspicion about big data is understandable. The concept doesn’t seem promising to most people. It seems scary. This is partly because big data research is shrouded in mystery. People are unsure about organizations’ motives and methods. What do companies think they know about us? Are they keeping their insights safe from hackers? Are they selling their insights to unscrupulous parties? Most importantly, do organizations use our personal information against us? Big data research will only overcome its suspicious reputation when people can trust it.
Some scholars and commentators have proposed review processes as an answer to big data’s credibility problem. It is possible that a review process for big data research could provide the oversight to ensure the ethical use of data we’ve been hoping for, applying sensible procedural rules to regularize data science. But procedure alone isn’t enough. In this essay, we argue that to truly protect data subjects, organizations must embrace the notion of trust when they use data about or to affect their human users, employees, or customers. Promoting meaningful trust will involves structuring procedures around affirmative, substantive obligations designed to ensure organizations act as proper stewards of the data with which they are entrusted. To overcome the failures of a compliance mentality, companies must vow to be Protective, Discreet, Honest, and above all, Loyal to data subjects. Such commitments backed up by laws will help ensure that companies are as vulnerable to us as we are to them. When we know we can trust those using big data, the concept might not seem so scary after all. We will disclose more and more accurate information in safe, sustainable ways. And we will all be better off
Restating International Torts: Problems of Process and Substance in the ALI\u27s Third Restatement of Torts
Get PDFThe American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is currently ongoing. Rather than applaud or critique the specific choice the reporters are making, I have chosen to discuss two broader concerns regarding the project. The first concern is that the piecemeal nature of assembling all the separate projects of the Third Restatement of Torts (including the review and adoption of different sections within Intentional Torts) has made the Intentional Torts reporters’ task more difficult than it should have been and may contribute to an overall product that is flawed in important respects, primarily because of inconsistencies that cannot easily be corrected. The second concern is that the Intentional Torts reporters have too often lost sight of the conceptual distinctions between intentional and nonintentional torts. Although I agree that these conceptual distinctions should not have driven the basic organization of the project, as was once suggested, I argue that the reporters are making doctrinal decisions that further blur, rather than clarify, the boundaries between the intentional torts and other torts, primarily negligence
Discovery, Research, and Development of New Antibiotics: The WHO Priority List of Antibiotic-Resistant Bacteria and Tuberculosis
No full textSummary
Background The spread of antibiotic-resistant bacteria poses a substantial threat to morbidity and mortality worldwide. Due to its large public health and societal implications, multidrug-resistant tuberculosis has been long regarded by WHO as a global priority for investment in new drugs. In 2016, WHO was requested by member states to create a priority list of other antibiotic-resistant bacteria to support research and development of effective drugs.
Methods We used a multicriteria decision analysis method to prioritise antibiotic-resistant bacteria; this method involved the identification of relevant criteria to assess priority against which each antibiotic-resistant bacterium was rated. The final priority ranking of the antibiotic-resistant bacteria was established after a preference-based survey was used to obtain expert weighting of criteria.
Findings We selected 20 bacterial species with 25 patterns of acquired resistance and ten criteria to assess priority: mortality, health-care burden, community burden, prevalence of resistance, 10-year trend of resistance, transmissibility, preventability in the community setting, preventability in the health-care setting, treatability, and pipeline. We stratified the priority list into three tiers (critical, high, and medium priority), using the 33rd percentile of the bacterium’s total scores as the cutoff. Critical-priority bacteria included carbapenem-resistant Acinetobacter baumannii and Pseudomonas aeruginosa, and carbapenem-resistant and third-generation cephalosporin-resistant Enterobacteriaceae. The highest ranked Gram-positive bacteria (high priority) were vancomycin-resistant Enterococcus faecium and meticillin-resistant Staphylococcus aureus. Of the bacteria typically responsible for community-acquired infections, clarithromycin-resistant Helicobacter pylori, and fluoroquinolone-resistant Campylobacter spp, Neisseria gonorrhoeae, and Salmonella typhi were included in the high-priority tier.
Interpretation Future development strategies should focus on antibiotics that are active against multidrug-resistant tuberculosis and Gram-negative bacteria. The global strategy should include antibiotic-resistant bacteria responsible for community-acquired infections such as Salmonella spp, Campylobacter spp, N gonorrhoeae, and H pylori.
Funding World Health Organizatio
Brief Amici Curiae on Behalf of International and Constitutional Law Experts in Support of Petition for Certiorari, Al Bahlul v. United States , 840 F.3d 757 (D.C. Cir. 2016) (en banc)
Get PDFoai:scholarship.law.bu.edu:faculty_scholarship-1002Amici curiae, legal experts in international and constitutional law, believe that a majority of the en banc panel in Bahlul v. United States, 840 F.3d 757 (D.C. Cir. 2016) (en banc), mistakenly affirmed Ali Hamza Ahmad Suliman al Bahlul’s conviction by a military commission for a non-international war crime. The main concurring opinion in that case misconceived how international law defines the jurisdiction of law-of-war military commissions. As amici argue below, it is the Constitution—not international law—that limits the jurisdiction of lawof-war military commissions
The Patently Unexceptional Venue Statute
Get PDFLegal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics are correct.
This article argues, however, that venue is one area of Federal Circuit procedural law that is not, in fact, exceptional. Rather, the court’s capacious understanding of venue is both consistent with broader trends in venue doctrine and with the text and purpose of the governing statutes. To be clear, as a matter of pure policy, granting plaintiffs unbridled discretion over choice of forum in patent litigation may be problematic. But there are better modes of reform than a questionable interpretation of the venue statute that could have unintended consequences both in patent cases and beyond.
This article, drafted for the American University Law Review’s annual symposium on the Federal Circuit, explores the history of the relevant venue statutes, analyzes key judicial decisions, argues that the Federal Circuit’s current approach to venue is doctrinally sound, and suggests alternative paths for reforming the law of forum selection in patent litigation
Antitrust and Intellectual Property: A Brief Introduction
Get PDFIntellectual property law and antitrust have been described as conflicting bodies of law, and the reason is easy to see. Antitrust law aims to protect consumers from the consequences of monopolization. Intellectual property law seeks to enhance incentives to innovate by granting monopolies in ideas or expressions of ideas. The purpose of this chapter is to explore the purported conflict between antitrust and intellectual property. The chapter is largely descriptive, and focuses on current or developing litigation rather than historical controversies. Many of the modern examples of conflict can be attributed to problems of classification