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The Liberty to Copy Unpatented Inventions
Get PDFPoster for Wendy Gordon\u27s 2017 University Lecturehttps://scholarship.law.bu.edu/law_presentations/1000/thumbnail.jp
Populist Property Law
Get PDFProperty scholars think of property law as consisting of a small number of highly technical forms created a long time ago by experts, i.e., legislatures and courts, which are hardly accessible to non-lawyers. This Article explores a new idea: the possibility that ordinary people, with little or no legal training, can become active participants in the creation of property law, directly intervening in the development of new property forms. The Article tells the story of two nineteenth-century American social movements that represented the little guys - workers and farmers - who used their \u27folk legal imagination to develop new property forms that would solve their most pressing needs by improving access to key economic resources such as land or credit. The story of populist property law deepens our understanding of property law in three important ways. First, it gives us a new appreciation of how property law is produced and organized, as well as a new perspective on the standard narrative of the historical development of property law in America. Second, the story of populist property law speaks to the democratic legitimacy of property law, suggesting that it has long sought a deeper level of democratic legitimacy stemming not just from democratically elected legislatures but from the people themselves. Third, populist property law helps us understand recent developments in property law. The rise in income and wealth inequality in recent decades has spurred a new wave of populist property law, and the story of nineteenth-century populist property law helps make sense of ideas and proposals that have arisen as a result
The Legal Revolution of Land Reform and the Changing Language of Property, 1820-1917
No full texthttps://scholarship.law.bu.edu/clark_speakers/1087/thumbnail.jp
Massachusetts Should Become A \u27Sanctuary State\u27
No full textAmid the turmoil of Donald Trump\u27s early presidency, there is no doubt that noncitizens are in the administration’s crosshairs. This is consistent with candidate Trump’s anti-immigrant rhetoric. Still, few outside his inner circle could have predicted the scope, breadth and swiftness of the president’s actions
The Tip of the Iceberg: A First Amendment Right to Promote Drugs Off-Label
Get PDFScholars, advocates, and courts have begun to recognize a First Amendment right for the makers of drugs and medical devices to promote their products “off-label,” without proving safety and efficacy of new intended uses. Yet, so far, this debate has occurred in a vacuum of peculiar cases, where convoluted commercial speech doctrine underdetermines the outcome. Juxtaposing these cases against other routine prosecutions of those who peddle unapproved drugs reveals the common legal regime at issue. Review of the seven arguments deployed in the off-label domain finds that, if they were valid, they would undermine the FDA’s entire premarket approval regime. Even more a companion paper shows that, if valid, this First Amendment logic would undermine a wide range of statutory regimes that have similar intent-based structures and that rely on speech as evidence of intent
Tip of the Iceberg II: How the Intended-Uses Principle Produces Medical Knowledge and Protects Liberty
Get PDFIn recent years, the Food and Drug Administration’s pre-market approval process has come under increasing scrutiny as an infringement on liberty and a regulation of speech. In the first part of this symposium contribution, we offer a case study of Seroquel XR, showing how the FDA’s premarket approval process – and the restrictions on “off-label” promotion in particular – caused the drug company to produce and disseminate knowledge about safety and efficacy for new uses. The law successfully resolved the collective action problem of producing knowledge, even while the law protected the liberty of individual doctors and patients to use the product in ways that the FDA had not considered.
In the second part of the paper, we show a range of other domains, in which Congress similarly uses the actor’s intent, shown by the actor’s own speech, to narrowly define proscribed conduct. By tailoring the law in this way, Congress achieves policy goals while minimizing the infringement of liberty. This broad review helps advance our understanding of both food and drug law as well as the First Amendment doctrine. The law’s use of speech as evidence of intent can produce knowledge while protecting liberty
Towards Patent Standardization
Get PDFAmong the most important purposes of patents are to provide clear notice to third parties of the patent\u27s boundaries and to disclose helpful information to researchers seeking to replicate or further develop the patented invention. Unfortunately, patents often fail at both of these tasks, in part because of lack of uniformity of language and format.\u27 Use of idiosyncratic language in patent claims renders it difficult to find relevant patents and, once a patent is found, to interpret its claims. As there is no customary set of information that must always be included in a patent, researchers often find reading a patent to be a frustrating and fruitless task.
Standardizing the language and format of patents can improve their notice and disclosure functions. Standardization has been discussed at length in many institutional and legal contexts, but has been discussed little in relation to patent content.2 Similarly, while problems arising from the lack of standardization are well documented, practical suggestions for improving standardization have been absent. This Article provides the first comprehensive discussion of patent content standardization.
The Article\u27s key intuition is that standardization can be achieved through a wide variety of mechanisms. In particular, standardization does not need to be mandated by formal rules; rather, it can arise through voluntary informal mechanisms, which provide an easier goal than statutory or regulatory interventions do. This Article also offers strategies for increasing standardization in less tractable patent environments, such as software. 3 Specifically, the Article discusses representational languages, which are already prevalent in software design, though not in resultant patents, as well as the role of standard setting organizations ( SSOs ) and other private organizations in encouraging standardization and the increased use of templates. When patent protection is sought in different countries all over the world, typically through the Patent Cooperation Treaty ( PCT ) system, the description of the invention in the patent document stays the same. Consequently, greater standardization in the patent document will also result in greater global uniformity in the description of patented inventions.
Standardization relates to private law, the theme of this Symposium, because standardization is fundamentally about solving problems of notice and disclosure, which are needed to facilitate interactions between private parties. Further, this Article advocates for the achievement of standardization at least partially through private mechanisms.
Part II provides background on the economics of standardization and problems with patent notice and disclosure. Part III describes currently existing standardization, and is divided between standardization achieved through mandates or formal mechanisms in Section IIIA, and standardization achieved through voluntary or informal mechanisms in Section III.B. Section III.C is a case study illustrating how a combination of mandates and voluntary mechanisms contributes to standardized units in patents. The case study is followed in Part IV by a discussion of how further standardization can be achieved, although this Article is merely the beginning of efforts towards standardization. Part V concludes
Legal Language: Expansion, Consolidation, Resistance
Get PDFLegal language in America, a species of the political discourse of popular sovereignty, underwent significant changes during the nineteenth century. Beyond dramatic changes in the technologies of language, two major sociolegal dynamics of political development drove linguistic innovation during the nineteenth century: expansion and consolidation. Religious revivals and political reform movements, including a number of utopian projects, spread the language of liberty and popular consent as groups migrated west. The sensational 1829 pamphlet known as Walker\u27s Appeal turned America\u27s language of political liberty against the slave trade. David Walker, a former slave, directed his words primarily to the colored people of the United States, urging them to assert their rights as men by revolting against their slave masters. As the nineteenth century came hurtling to a close, new disintegrating forces worked against national efforts at linguistic consolidation. The most visible development involved the displacement of customary legal discourse by institutions and statutes over time
Implementation of Anti-bullying Legislation in Iowa Schools: A Qualitative Examination of School Administrators’ Perceived Barriers and Facilitators
No full textAdolescent bullying is linked to numerous adverse psychosocial effects that can persist into adulthood. In response to this problem, in 2007 Iowa adopted an antibullying statute requiring all school districts to adopt an antibullying policy. From 2013–2014, 47 semistructured interviews were conducted with school and district administrators in Iowa. Administrators identified many policy implementation challenges including limited funding and staff, and difficulties selecting prevention programs, applying the law’s bullying definition in investigations, and understanding the school’s jurisdiction for policy enforcement. Contextual barriers to implementation (e.g., media portrayals of bullying and parental attitudes) also emerged. This is the first study to use the interactive systems framework to examine antibullying law implementation, highlighting the importance of coordination among research translators, supportive organizations, and on-the-ground implementers
Trump & VAT: NAFTA, Trade Barriers & Retaliatory Tariffs
Get PDFDuring the first presidential debate President-elect Donald J. Trump argued that the value added tax (VAT) operated as a trade barrier to American business everywhere. He particularly pointed to the North American Free Trade Agreement (NAFTA). Mexico was a special concern. China was also a concern, but in this instance Trump was troubled both by China’s VAT and by China’s alleged currency manipulation.
This paper can only consider the VAT aspect of Trump’s trade policy. There appears to be some confusion about the operation of the VAT, particularly the border adjustment mechanism, and how US tariffs could “level the playing field.” The confusion needs to be cleared up.
Trump indicated that as president he would respond to “unfair trade practices” by imposing retaliatory tariffs on goods and services coming into the US from any country that imposed an import VAT on American businesses exporting goods or services to their country. There are more than 160 countries that have a VAT and all of them impose an import VAT. Trump is promising a trade war. He promises to set US tariffs at a rate that would force governments and businesses to take notice.
The argument for imposing US tariffs on imported goods coming from countries that collect an import VAT on US goods raises three questions that can be adequately handled by looking just at the NAFTA relationship. Two questions consider the issue from the perspective of a US manufacturer exporting to a NAFTA country, the third question hypothetically moves a US manufacturer into a NAFTA country, and considers the impact of VAT refunds on sales that this company will make back into the US. The questions revolve around the two central elements of border adjustments – the full VAT refund allowed for exports, and the import VAT collected from the importer of record. Trump has concerns with both aspects.
The three questions are:
(1) US Exports to NAFTA - In the normal case, does the standard, destination-based, credit-invoice VAT erect a trade barrier equal to the amount of the import VAT?
(2) US Exports to NAFTA - If not creating a barrier in the normal case, are there other fact patterns where the standard, destination-based, credit-invoice VAT does erect a trade barrier equal to the amount of the import VAT?
(3) US Imports from NAFTA - Can an American manufacturing company move its operations to Canada or Mexico and gain an unfair advantage when selling their product back into the US VAT-free; that is, can a manufacturer unfairly benefit from the VAT refund aspect of border adjustment that is provided to exporters from VAT jurisdictions, as compared to comparable manufacturers producing and selling entirely within the US?
These are the questions this paper considers