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A Program to Improve the Efficiency and Quality of Patent Examination
Get PDFIn this article we suggest three novel amendments to U.S. patent law to increase efficiency and decrease costs. We first contend that while the assertion of invalid patents is detrimental because of anticompetitive effects, such competition concerns should place no duty upon applicants to disclose prior art at the outset. Additionally, we argue that to avoid resource waste, the USPTO should outsource prior art searches for certain applications, as in Japan. Finally, we propose a system where patentees have the option to elect to a patent box regime that reduces their taxes on patent profits substantially (e.g., from 21% to 5%), but requires patentees to pay the USPTO a modest percentage (e.g., 2%) of their profits annually, in lieu of flat periodic maintenance fees. Implementing these changes, or suitable alternatives based on the underlying principles of these changes, will help the USPTO issue deserving inventors more durable patent rights to compete in the global market
The States\u27 Hodgepodge of Physician Licensure Regulations
Get PDFThe end of the federal COVID-19 public health emergency (PHE) on May 11, 2023, marked a pivotal shift in the landscape of telehealth regulation in the US. Kwan, Jolin, and Shachar analyze the implications of this transition by exposing inconsistencies in access to care. We agree that we now face a “convoluted patchwork of permanent and temporary changes to telehealth law and policy.
Venality: A Strangely Practical History of Unremovable Offices and Limited Executive Power
No full textThe Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.
This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood that monarchs lacked a general removal power and why so many public offices were treated as private property: a surprisingly functional “venality” system. Many powerful officeholders in European monarchies bought their offices, and in return for their investment, their office was protected as property—especially in England. European administration depended upon a flexible mix of removable patronage offices and unremovable offices for sale. Montesquieu rejected “displacement” at will (i.e., removal at pleasure) as a tool of “despotic government,” and he endorsed “vénalité.” He and many English legal writers defended such limits on removal as a practical system of family investment, incentives, checks, and balances. The sale of offices as property may seem strange and corrupt today, but it was a practical foundation for the nation-state, modern administration, and colonial expansion.
This history shows how removal was neither necessary nor sufficient for law execution. It offers a consistent explanation for the text of Article II, the Federalist Papers, and the First Congress’s debates and statutes. Thus, unitary theorists have not met their evidentiary burden to support their historical claims about Article II implying removal as a matter of original public meaning
Employer-Sponsored Reproduction
Get PDFThis Article interrogates the current and future role of employer-sponsored health insurance in reproductive choice, revealing the magnitude of impact that employers’ insurance coverage choices have on Americans’ access to reproductive care, as well as the legal infrastructure that prioritizes employer choice over individual autonomy.
Over half the population depends on employers for health insurance. The laws regulating those plans grant employers discretion in what services to cover, with exceptionally wide latitude for employers’ choices about reproductive care services, like abortion, contraception, infertility, and pre-exposure prophylaxis (PrEP). In their role as health care funders, employers pursue their own economic interests, which often conflict with employees’ interests. Employers tend to be antinatalist because childbearing, birthing, and rearing are costly to them both as employers and insurers. Even ostensibly pronatalist employers who object to covering contraception and abortion, upon closer examination, likewise have economically self-interested motivations. The legal infrastructure validating employers’ choices subordinates individuals’ interests in reproductive autonomy to their employer’s economic interests.
Decoupling health care access from employers thus is necessary to bolster reproductive autonomy. But the most effective means of decoupling – public-option or single-payer public benefits – prompt some tough questions about reproductive exceptionalism. Shifting the third-party payment role from employers to governments does not truly remove the threat to reproductive autonomy in these funding decisions, so progressive health reform risks sacrificing reproductive autonomy to the cause of universal benefits. Confronting these tough questions illuminates ways that vigilantly centering reproductive autonomy in single-payer reforms can make those efforts both more feasible and more durable
Constitutional liberalism through thick and thin: Reflections on Frank Michelman’s \u3cem\u3eConstitutional Essentials\u3c/em\u3e
Get PDFIn his new book, Constitutional Essentials, Frank Michelman provides a splendid elaboration and defense of “the constitutional theory of political liberalism” implicit in John Rawls’s classic work, Political Liberalism. In this essay, we make some observations about what a difference 30 years makes, comparing the political and constitutional climate in which Rawls wrote and published Political Liberalism in 1993 with the climate in which Frank wrote and published this exegesis of it. We focus on (1) changes in our circumstances of pluralism, including the accentuation of polarization and unreasonable views, and (2) the simultaneous breakdown of trust in the Supreme Court authoritatively to resolve disputes concerning constitutional essentials. Throughout, we acknowledge and seek to reckon with the possibility that Michelman may have given Rawls’s liberal principle of legitimacy its fullest, most coherent account just at the moment when the possibility of realizing it seems to be passing
Building Presidential Administration
No full texthttps://scholarship.law.bu.edu/clark_speakers/1097/thumbnail.jp
A Conversation on the Carceral Home
Get PDFOn February 8, 2024, scholars Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, and James Kilgore met virtually at the Boston University School of Law to hold a conversation on Professor Weisburd’s article, The Carceral Home, 103 B.U. L. Rev. 1879 (2023)
Selling and abandoning legal rights
Get PDFLegal rights impose concomitant legal burdens. This paper considers the valuation and disposition of legal rights, and legal burdens, when courts cannot be relied upon to perfectly enforce rights. Because courts do not perfectly enforce rights, victims suffer some loss in the value of their rights depending on the degree of underenforcement. The welfare implications of trading away and abandoning rights are examined. Victims do not necessarily trade away rights when and only when such trade is socially desirable. Relatively pessimistic victims (who believe/= / \u3etheir rights are weaker than injurers do) trade away rights too cheaply. Extremely pessimistic victims abandon their rights. Implications for the enforceability of waivers, discrimination in courts, and legal ethics are discussed
The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron and More
Get PDFThe Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. In periods of governmental innovation and assertions of expanded authority, this aggression becomes evident and perhaps more robust.
In recent years, the Court has created new barriers to government innovation even as government is confronted with serious threats to the health and welfare of mankind. Chief among this new set of limitations on the power of federal administrative agencies is an interpretive device that has become known as the Major Questions Doctrine. This doctrine purports to be based on a traditional view of legislative intent and judicial role, but in reality it resonates more with conservative anti-regulatory political views. Under this new doctrine, the Court rejects agency assertions of regulatory authority when it finds that the agency’s action would have major social and economic affects and lacks crystal-clear congressional authorization. Ironically, because the MQD has no basis in the Administrative Procedure Act or prior law, the Court has in effect created a major new doctrine of administrative law severely limiting agency authority without clear authorization from Congress.
The Court has also suppressed agency innovation by confining Chevron deference to unimportant issues of statutory construction. Chevron, for all of its faults, has the virtue of validating agency policy innovation so long as Congress had not clearly denied agency authority. This reform to Chevron, together with the creation and application of the Major Questions Doctrine, in effect accomplishes the aim of some Justices to impose a more robust nondelegation doctrine, making agency innovation even more difficult. In addition, the Court has worked to prevent innovation in other areas of law, such as agency structure, gun control and the spending power, preventing the state and federal governments from taking action to deal with pressing social problems. The current Court has truly become an anti-innovation Court
Could Florida Colleges be the Blueprint for Trump\u27s War on Education?
No full textIn his quest to cement his power, President-elect Donald Trump is coming for higher education and our civil rights infrastructure. The Florida GOP’s assault on public universities and cynical weaponization of antisemitism offers Trump a ready-made blueprint. For those who think “liberal universities” in blue states will manage to hold the line, two recent trends suggest otherwise