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Bargaining Failure and Failure to Bargain
Get PDFIn this talk I want to do four things. First, I’m going to present a motivating example, and second I will discuss what causes IP litigation. I want to distinguish between bargaining failure and failure to bargain ex ante. This is the descriptive portion of my project, and the message is really pretty simple. In law and economics, we think a lot about why people who have a dispute, who sit cross from each other at a table, fail to do the efficient thing, which is to stay out of the courtroom and avoid incurring litigation costs. Law and economics scholars have a lot of explanations about why that kind of bargaining failure occurs, but actually quite little thought has gone into the questions of: When do these people find each other? How do they find each other? Will they get to the bargaining table? Coase, in his transaction cost paper, actually described this as “discovery cost.”1 He had little to say about it in that paper, and not many scholars subsequently have picked that up. That’s where I’m entering the academic literature—trying to think more about failure to bargain, especially failure to bargain early. What explains when and how people get together, at an early date, to deal with an IP dispute? Third, in a normative vein, I will talk about whether we should reform IP law to encourage early bargaining. I want to talk about the gains to ex ante bargains, and the incentives to search out partners, match with them, and then actually bargain. How can the law affect those incentives? To conclude, I will briefly describe policy levers that might be used to address failure to bargain
Tort Law: A Modern Perspective
No full textTort Law: A Modern Perspective is an advanced yet accessible introduction to tort law for lawyers, law students, and others. Reflecting the way tort law is taught today, it explains the cases and legal doctrines commonly found in casebooks using modern ideas about public policy, economics, and philosophy. With an emphasis on policy rationales, Tort Law encourages readers to think critically about the justifications for legal doctrines. Although the topic of torts is specific, the conceptual approach should pay dividends to those who are interested broadly in regulatory policy and the role of law. Incorporating three decades of advancements in tort scholarship, Tort Law is the textbook for modern torts classrooms. Completely up to date with developments in modern tort law Introduces students to analytical tools such as cost-benefit analysis, basic game theory, and present value calculations Develops critical thinking skills through nuanced discussion of policy rationaleshttps://scholarship.law.bu.edu/books/1086/thumbnail.jp
Redressing HIV/AIDS Discrimination in Nigeria: The Implications of the Anti-Discrimination Act of 2015
No full textAccording to the 2013 Nigeria Demographic and Health Survey conducted by the National Population Commission of the Federal Republic of Nigeria, the majority of Nigerians hold discriminatory attitudes towards PLWHAs.3 Such views are strengthened by the perceived association of HIV/AIDS with socially unacceptable behavior such as sex outside of marriage.4 The effect of this stigma is twofold. [...]from the above category specified, applicants cannot invoke section 42(1) on the contention that they have a right to exercise under that section.17 Regarding the right to health claim, Nwodo ruled the denial of medical treatment violated the African Charter
Liberty
Get PDFTo secure the blessings of liberty, the Preamble to the US Constitution proclaims, We the People . . . ordain and establish this Constitution. The Constitution is said to secure liberty through three principal strategies: the design of the Constitution as a whole; structural arrangements, most notably separation of powers andfederalism; and protection of rights. This chapter focuses on this third strategy of protecting liberty, in particular, through the Fifth and Fourteenth Amendments. We first examine the several approaches taken to the Incorporation of certain basic liberties enumerated in the Bill of Rights to apply to the state governments. We then examine the protection of unenumerated substantive fundamental rights or liberties against encroachment by the state governments or the federal government. We distinguish three phases in judicial protection of fundamental rights or liberties: (1) from 1887 to 1937; (2) from 1937 to 1973; and (3) from 1973 to the present. We discuss the substantive liberties that the Court has recognized under thecategories of privacy, autonomy, or substantive due process. On one view, this list is a subjective, lawless product of judicial fiat and the whole enterprise is indefensibly indeterminate and irredeemably undemocratic. The other view, which we defend, is that the list represents a rational continuum of basic liberties stemming from the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny. Tracing the due process inquiry from Roe (1973) to Lawrence v. Texas (2003) reveals how the Court and individual justices have waged a contentious battle among three available conceptions of what constitutes a tradition: abstract aspirational principles, concrete historical practices, and a rational continuum or evolving consensus. Lawrence signaled a return to a conception of tradition as a rational continuum or evolving consensus of aspirational principles and, in 2013, the Court drew upon Lawrence’s understanding of liberty together with Romer v. Evans’s understanding of equality in United States v. Windsor, striking down Section 3 of the Defense of Marriage Act. This chapter also discusses the so-called double standard concerning judicial protection of economic liberties as distinguished from personal liberties, sketching several theories’ views regarding Lochner v. New York in relation to Roe. Another issue is the stringency of the protection of liberties under the Due Process Clauses. Rather than two rigidly-policed tiers of scrutiny, with strict scrutiny automatically invalidating laws and deferential rational basis scrutiny automatically upholding them. the leading due process cases protecting liberty and autonomy – from Meyer (1923) through Lawrence (2003) – map onto a continuum of ordered liberty, with several intermediate levels of review. The chapter concludes by addressing substantive and institutional criticisms of constitutional protection of liberty
Financial Rewards for Whistleblowing Lawyers
Get PDFThe federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have held are not preempted by the FCA. No lawyer has been publicly identified as seeking a whistleblower reward under Dodd-Frank, perhaps because the program is young, but also because the SEC process for determining whistleblower eligibility is secret
Why is There No Clear Doctrine of Informed Consent for Lawyers?
Get PDFWritten as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled “Informed Consent in the Practice of Law.” In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients against their physicians for failure to obtain their informed consent to various medical procedures. In the decades since publication of this article, it is not surprising that legislatures have not enacted such statutes. What may be surprising, however, is that courts have not significantly expanded the availability of a legal malpractice action when the gravamen of the complaint is the lack of informed consent.
The purpose of this article is to attempt to explain why common law courts have not clearly adopted the informed consent doctrine in the legal context to the same extent as they have done so in the medical context. It suggests that a primary reason for this lack of development of informed consent in legal practice is the lack of clarity and consensus among courts and commentators concerning several separate but related concepts: the allocation of decision-making authority between lawyer and client, the lawyer’s duty to keep the client reasonably informed concerning the representation, and the lawyer’s duty to fully explain matters when the client’s consent is necessary. This confusion was evident not only in the ABA Code of Professional Responsibility that was in effect when Professor Martyn published her formative article, but also in the ABA Model Rules of Professional Conduct that were initially adopted in 1983. While some of the confusion was removed in subsequent amendments to the Model Rules, which were adopted as a result of recommendations by an ABA commission on which both Professor Martyn and I served, there continues to be significant confusion concerning these related concepts.
Speaking for herself, the author confesses that she now believes that the commission could have and should have done more to eliminate this confusion, including providing additional guidance concerning which actions lawyers are “impliedly authorized” to take on behalf of clients and expressly requiring lawyers to obtain the client’s “informed consent” for all decisions that are the client’s to make. However, with respect to the failure of relevant law outside the rules of professional conduct to clearly designate which decisions are for clients and which are for lawyers, the author rejects the conclusion that the Model Rules should have adopted the view of the American Law Institute that clients should have the right to instruct their lawyers so long as such instructions are lawful and do not require lawyers to violate their professional responsibilities. In the author’s opinion, there are normative reasons why courts have not uniformly embraced this view; as a result, the allocation of decision-making authority between lawyer and client involves highly contested issues that should not be resolved by fiat in rules of professional conduct. Thus she is satisfied that the commission rightfully declined to resolve the question of who decides when the lawyer and client fundamentally disagree over the means of the representation, fully cognizant that the failure to do so may reduce the likelihood that common law courts will adopt the informed consent doctrine in legal practice to the same extent that they have done so in medical practice
Government Analysis of Shed DNA Is a Search under the Fourth Amendment
Get PDFThis article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.
Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when police are interested in determining whether a suspect may be connected with an unsolved crime for which they collected a DNA sample from the crime scene, they will covertly obtain the suspect’s DNA from a fast-food wrapper or hair sample taken from a barber-shop floor. To date, judges have concluded that persons have discarded the DNA-laden cells obtained by police in these circumstances, and thus under Fourth Amendment law, retained no privacy interest in the item seized by police. /= / \u3e/= / \u3eSecond, the analysis of the DNA sample might trigger Fourth Amendment safeguards. This second issue – whether the Fourth Amendment is implicated when police surreptitiously analyze a citizen’s involuntarily shed DNA – is the topic of my paper. Most recently, two state high courts, Maryland and Massachusetts, have rejected Fourth Amendment claims that government analysis of DNA samples lawfully obtained from persons constitutes a search under the Fourth Amendment. The Supreme Court denied certiorari in the Maryland case – Raynor v. Maryland, 99 A. 3d. 753 (Md. 2014), cert. denied, 135 S. Ct. 1509 (2015). The result in Raynor conflicts with a ruling of the United States Court of Appeals for the Fourth Circuit, the federal circuit in which Maryland sits. In United States v. Davis, 690 F. 3d 226 (4th Cir. 2012), the Fourth Circuit ruled that the analysis of a suspect’s DNA sample from clothing lawfully obtained by the police was a search. The Fourth Circuit explained that “analysis required to obtain a DNA profile . . . generally qualifies as a search, because an individual retains a legitimate expectation of privacy in the information obtained from the testing.” However, the Court has requested the Commonwealth of Massachusetts to file a reply to the certiorari petition filed in the Massachusetts case – Commonwealth v. Arzola, 26 N.E. 3d 185 (Mass. 2015). In concluding that analysis of a DNA sample does not constitute a search, both the Maryland and Massachusetts high courts relied heavily on the Supreme Court’s 2013 ruling in Maryland v. King, which held that where police have probable cause to arrest for a serious offense, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”/= / \u3e/= / \u3eSpecifically, Part I of my article discusses whether analysis of abandoned DNA constitutes a search under the Fourth Amendment. Part II of the article considers a conflict in the Supreme Court’s cases when new technology or science gives law enforcement authorities enhanced capabilities to discover information arguably protected by the Fourth Amendment. In some cases, when deciding whether a search occurred, or the reasonableness of a challenged search, what a particular intrusion actually reveals matters little; what matters is the potential risk to privacy posed by new technology. In other cases, the fact that a particular intrusion has the potential to disclose highly personal data or massive amounts of information is constitutionally irrelevant. The only thing that matters is what was actually revealed by the intrusion. Finally, Part III of the article considers the implications of leaving the analysis of shed DNA unregulated by the Fourth Amendment
The Novel New Jersey Eyewitness Instruction Induces Skepticism but Not Sensitivity
Get PDFIn recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. Although courts have only recently begun to react to this evidence, the New Jersey judiciary has reformed its jury instructions to notify jurors about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of alternative lineup procedures, including blinding of the administrator. This experiment tested the efficacy of New Jersey’s jury instruction. In a 2×2 between-subjects design, mock jurors (N = 335) watched a 35-minute murder trial, wherein identification quality was either “weak” or “strong” and either the New Jersey or a “standard” instruction was delivered. Jurors were more than twice as likely to convict when the standard instruction was used (OR = 2.55; 95% CI = 1.37–4.89, p \u3c 0.001). The New Jersey instruction, however, did not improve juror\u27s ability to discern quality; rather, jurors receiving those instructions indiscriminatingly discounted “weak” and “strong” testimony in equal measure
Library Director as Opportunity Identifier
Get PDFA successful contemporary law library director should seek opportunities to insert the law library, wherever possible, into projects that benefit the law school and its mission and that draw on the talents and expertise of the law librarians. The goal of the modern law library director should be to make the law library an integral part of each and every undertaking within the law school community. Every facet of the law school and its various departments and offices can benefit from either law library research and instructional services or the creative thinking and analytical orientation that librarians bring to the table. Even projects, initiatives, or programs that on their face seem to have no relationship to libraries should be considered fair game for library input and collaboration. It is this kind of integration into the law school community that will make law libraries indispensable and help to ensure our continued relevance.
Facilitating this kind of law library integration into every facet of the enterprise of legal education involves much more than merely responding to requests for assistance. It means being proactive in seeking out opportunities for library involvement. It means paying attention to cues and subtle inferences from colleagues that signal a desire for help or an unmet need. It means thinking about law school-wide work flows and how the law library can aid in streamlining them. It could also mean thinking about how to reimagine past project failures - library or other - and recreating them as successful law library undertakings
POV: Refusing Syrian Refugee Admissions—A Reality Check
No full textOn November 20, 27 GOP governors signed onto a letter calling on the Obama administration to suspend the resettlement of Syrian refugees in the United States. While our own governor, Charlie Baker, declined to sign the letter, he has been vocal about his concerns over the federal government’s refugee vetting process. The problem is that both responses—that of the 27 GOP governors and of Baker—ignore legal and procedural truths about refugee resettlement. In fact, governors cannot refuse to resettle Syrian refugees in their states, and the security screening measures already in place are exceptionally robust