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Disclosure of Third-Party Funding in International Arbitration
No full textThird-party funding has evolved into a ubiquitous “feature of modern litigation” that in some jurisdictions is “an accepted and judicially sanctioned activity perceived to be in the public interest.”529 Similarly, third-party funding has become even more prevalent in international arbitration, particularly considering the high dollar amount of most arbitral awards. In addition, several major arbitration seats have officially embraced third-party funding in international arbitration through legislation or court opinions, including Australia, England, and Wales, most of the states in the United States, Germany, the Netherlands, several provinces in Canada, Singapore, Hong Kong, South Africa, and Nigeria (indirectly).530 Furthermore, there are many other jurisdictions where third-party funding may be happening, but no official governmental response has yet ensued.
This article proceeds as follows. The remainder of this introduction defines third-party funding, describes basic third-party funding transaction structures, and outlines the major debates surrounding the existence of third-party funding in international arbitration. Next, this article outlines the reasons and scope for disclosure and describes rules and guidelines for third-party funding as articulated by institutions, arbitral tribunals, domestic courts, treaties, and domestic legislation. This article then addresses third-party funders as custodians of confidential information and charges them with ensuring the legitimacy of the arbitration process and preventing arbitrator conflicts of interest. Finally, this article addresses the rising influence of “outcome-motivated” (or not-for-profit) funders, whose primary focus is something other than making a financial profit from the case
Inside Administrative Law: What Matters and Why, Second Edition
No full textInside Administrative Law: What Matters and Why is a comprehensive, in-depth yet clear and readable study of Administrative Law, designed to help motivated students succeed in Administrative Law courses and all courses touching on the regulatory state and separation of powers. Written by a distinguished teacher with more than thirty years of experience teaching Administrative Law in law schools in the United States and abroad, it is written and designed with law students’ needs in mind. Inside Administrative Law is the perfect supplement to any casebook, with extensive coverage of separation of powers, availability and standards of judicial review, constitutional due process, adjudicatory and rulemaking procedures, freedom of information and alternatives to traditional judicial review including private remedies for regulatory violations. Inside Administrative Law is user-friendly for law students and practitioners who need a concise reference on Administrative Law concepts.
New to the Second Edition: Edited for improved readability throughout with the needs of Administrative Law students in mind Discussion of all major new Supreme Court decisions on Administrative Law, including cases involving the Affordable Care Act, exceptions to the Freedom of Information Act, the appointment and removal of agency officials including Administrative Law Judges, doctrines governing judicial deference to agency decisions, and the procedural requirements for agency rulemaking Updated and expanded coverage of separation of powers, especially focusing on the President’s appointment and removal powers and the legality of Executive Orders and similar unilateral presidential actions Expanded coverage of the reviewability of agency action, including focus on the availability of judicial review of the revocation of the Deferred Action immigration programs Updated and expanded coverage of standing to seek judicial review Expanded coverage of the Chevron doctrine and its major questions\u22 exception Discussion of Department of Commerce v. New York, a 2019 Supreme Court decision in which the Court rejected the Secretary of Commerce’s decision to add a citizenship question to the 2020 census as based on pretextual reasons Discussion of the controversy over nationwide injunctions Updated coverage of the use of cost-benefit analysis in agency decision-making Additional material on formal adjudicatory hearings and their statutory requirements Updated coverage of federal preemption of state lawhttps://scholarship.law.bu.edu/books/1349/thumbnail.jp
Patent Shopping
Get PDFOver the past decade, scholars have identified many entities who use the patent system in ways that differ from the traditional model of patent use — entities such as patent assertion entities, patent aggregators, or owners of large patent portfolios. This Article presents a model that explains the behavior of some of the biggest and most controversial entities in the patent system. This Article argues that such entities are engaged in “patent shopping” where the plaintiff makes a strategic choice of patent in order to obtain the best facts and substance in a case and thereby maximize the chance of a favorable outcome. The patent shopping model draws by analogy on forum shopping, where plaintiffs make a strategic choice of forum in order to maximize the chance of a favorable outcome. The patent shopping model stands in contrast to the traditional model of patent use where a patentee owns a small number of patents closely related to a commercialized invention, which are drafted to encompass possible attempted work-arounds. Under the traditional model, patent acquisition comes first, infringement second. This Article proposes that, for patent shoppers, the chronology is flipped: infringement first, patent acquisition second. Instead of drafting patents to predict infringement, patent shoppers are able to react to infringement by selecting a patent that fits the infringing behavior. This is possible because most companies are constantly infringing on many different potential patents, infringement which has historically not been enforced. Patent shoppers have access to hundreds or thousands of patents, related to many different inventions, and can identify an instance of infringement that is a good target for enforcement and can then acquire the patent(s) of their choice. For instance, patent assertion entities may evaluate large numbers of patents that are available for sale and then select patents that can be most profitably enforced. Similarly, owners of large patent portfolios can shop in their own closet by selecting the best patents for enforcement from a wide array of options.
This Article presents the shopping model and then conducts a qualitative review of the financial statements of potential patent shoppers to provide empirical evidence that these entities pursue patent shopping as a business strategy. Patent shopping is a way to view some of the most important players in the patent system and adds a new analytic perspective to the broad literature on these entities. The concept of shopping for good claims is not unique to patent law; it also occurs in, for example, personal injury litigation and consumer debt suits. Thus, the framework proposed herein is broadly applicable to many areas of law
The Replicability Crisis in Patent Law
Get PDFThere is a “replicability crisis” in the scientific literature. Scientists attempting to redo experiments in reputable, peer-reviewed journals have found that staggering numbers of these experiments—up to 90%—do not work. Patents, like scientific articles, contain experiments. These experiments often form the backbone of the patent and provide crucial support for patentability. Patent examiners use these experiments to evaluate whether the invention works, and thus whether the patent should be granted. The replicability crisis in the scientific literature is therefore of utmost importance to the patent system. Transferring the insights of the replicability crisis to patents begs the question of whether experiments in patents are similarly irreplicable—a question that has not previously been asked in the literature.
This Article’s novel empirical study of 500 patents and applications measures the replicability of experiments in patents. Using methodological quality of the experiment as a proxy for replicability, this study finds that experiments in patents have very poor methodological quality, which means that they are likely irreplicable at rates at least as high as experiments in scientific journals.
Given the centrality of experiments to patents, this Article’s empirical finding is a crisis not only of replicability, but also of patent law, and has important implications for patent doctrine, theory, and policy. Patent law relies on the assumption that, when a patent is filed, it has been “reduced to practice”—meaning that the invention works. The reality is that most inventions likely do not work, casting serious doubt on this assumption. Similarly, the underlying justification for patents—incentivizing innovation—requires that they contain enough information to teach others how to make and use the invention. Irreplicable patents may not do this. In short, there is a fundamental mismatch between patent law’s theory and doctrine, which treat patents as reflecting fully formulated inventions, and what patents often represent, which is early stage, frequently unproven, results. The replicability literature—and the findings of this Article—teach us that experiments reported in patents are not reliable enough to merit the level of control and influence that they are granted in the patent system.
This Article argues that patent law cannot solve irreplicability; instead, patent theory must better reflect the reality of irreplicability. Several policy proposals flow from this reformulation, including easing the process of invalidating inoperable patents, improving disclosure of ex post data in patents, and clarifying the experimental use exception
Introduction: Health and Human Rights
Get PDFThe American health care industry is killing us, and the casualties are mounting daily. Instead of saving lives, it is more often taking them, and not only by failing to seriously confront the coronavirus pandemic and racism in the industry, but also by the way health care is financed
Brief of Amici Curiae Scholars of the Constitutional Rights and Interests of Children in Support of Respondents
Get PDFThis Brief of Amici Curiae Scholars of the Constitutional Rights and Interests of Children in Support of Respondents filed in Fulton v. City of Philadelphia makes two points. First, a categorical exemption, based on religious beliefs rather than foster children’s needs, does not serve the best interests of children and violates the government’s duty to foster youth. Such an exemption needlessly restricts the pool of prospective foster parents, increasing the risk of a greater number of children being confined to long-term, institutional care. The reduction of same-sex foster parents would also have a disproportionate impact on “special needs” and LGBT children in foster care.Second, allowing a government contractor to exclude same-sex foster parents gives legal effect to private beliefs in the provision of public foster care services in contravention of the aims of the Fourteenth Amendment. The requested exemption would endorse unconstitutionally impermissible forms of discrimination on the basis of gender stereotyping, sex, and sexual orientation. The Supreme Court has drawn “upon principles of liberty and equality to define and protect the rights of gays and lesbians,” and their families. The Court should do so in this case to protect same-sex couples and children in foster care
Third Country Deportation
Get PDFThe large-scale deportation of noncitizens from the United States is not new. However, the speed, and secrecy, by which many of these deportations are carried out is unprecedented. Deportations are, increasingly, executed not through a legal court process, but rather, extrajudicially—in detention centers and at border crossings, outside the purview of judges or neutral adjudicators. One kind of this “shadow deportation” is what I term “third country deportation”—the removal of noncitizens to a country other than that designated by an Immigration Judge, after relief to the designated country has been granted, and after the court proceeding has concluded.
This article builds upon the work of other scholars who have illuminated deportations that occur in the shadows—including expedited removal, administrative removal and reinstatement of removal—all of which happen quickly, and largely without judicial review. This article argues that “third country deportations” are not only part of this growing, and dangerous, trend toward deportations that happen outside the courtroom, but that they are in direct violation of both our domestic and international legal obligations. In fact, third country deportations place already vulnerable noncitizens at risk of being removed to countries where they face persecution and torture, without the process and judicial oversight that a court proceeding provides. In order to comply with our legal obligations, this article contends that notice, burden shifting, and a full evidentiary hearing are required when the government seeks to remove a noncitizen to a country other than that designated by an Immigration Judge
Forming Start-Up Companies: Who\u27s My Client?
Get PDFConsider the following scenario: three individuals—a magician, a baker, and a puppeteer—want to start a business that will run birthday parties for children. The magician will put up most of the money, the baker has extensive experience with children’s birthday parties, and the puppeteer, who has an MBA, will manage the business. They meet with a lawyer to help them form a company, including advising them on such issues as choice of entity and allocation of ownership and control. Before the lawyer agrees to the representation, she must ask herself: “who will I represent?”1
The author of this hypothetical, legal ethics expert Stephen Gillers, suggests that the issue is whether conflicts of interest prevent the lawyer from representing all three founders, in which case the lawyer would presumably represent only one of them.2 Addressing a similar hypothetical, another legal ethics expert, Paul Tremblay, agrees that the only plausible alternatives are “represent[ing] the founders as joint clients, most often with an explicit understanding that the firm would later represent any resulting business entity” or “represent[ing] only one of the founders.”3 However, Tremblay also suggests that, in some circumstances, the founders will already have formed a partnership by operation of law, or a “default partnership.”4 In these cases, the lawyer will likely represent the existing partnership entity in choosing to form an entirely new entity.5 Tremblay also notes that under “the rather quirky Jesse v. Danforth doctrine,” recognized in a few jurisdictions, the founders, “while apparently individual joint clients during the formation stage, retroactively convert to constituents of the entity— instead of former clients of the firm—after the entity has been established.”6 Whatever that means. And, to offer yet another option, mentioned by neither Gillers nor Tremblay, a State Bar of Arizona ethics opinion advises that a lawyer may form a business entity for multiple founders “and be counsel only for the yet-to-be-formed entity”—describing entity representation that is prospective rather than retrospective.7 What’s a lawyer to do?
Most jurisdictions have not yet addressed the question of whether some form of “entity” representation is available before a business entity has been created. As a result, one of this Article’s goals is to explore the advantages and disadvantages of doing so by considering both the “retroactive” and “prospective” options. In my view, courts should reject both of these options and insist on representation of one or more of the individual founders. But if some form of entity representation is deemed desirable, then I argue that it is the “prospective” rather than the “retroactive” option that should be recognized. As for “default partnerships,” I agree that representation of the existing entity appears to be at least a theoretical option, but I argue that such representation may raise more problems than it solves. As a result, I urge lawyers to choose to represent the partners jointly as individuals rather than the default partnership entity.
Part I of this Article examines early views of client identity in forming a start-up company. Although most courts and commentators assumed that entity representation was impossible because the entity had not yet been formed, one prominent commentator proposed reforming the ethics rules to permit lawyers to represent an incipient entity—but only when it was sufficiently “formed up” such that the group was the functional equivalent of a legally recognized entity. Part II addresses the formal adoption of a retroactive entity approach to preformation representation, including the lack of persuasive precedent for such an approach, as well as the weakness of the stated policy rationales. Part III discusses the concept of prospectively representing a yet-to-be-formed entity, concluding that while this is more attractive than a retroactive approach, it presents many of the same difficulties. Part IV directly addresses the policy concerns in answering the question of whether courts should permit lawyers to represent a yet-to-beformed entity. It concludes that the disadvantages of doing so outweigh any benefits to the founders and that any such benefits can just as easily be accomplished through joint representation of some or all of the founders. Finally, Part V acknowledges that, under certain circumstances, founders who have begun the process of developing a business become default partners. When this happens, there is indeed an entity that qualifies for client status; nevertheless, here, too, there are difficulties in determining both the identification of the appropriate decision makers and the need to keep all the partners informed. As a result, this Article concludes that the partners are better off when the lawyer represents them individually in a joint representation, where appropriate
When They Hear Us: Race, Algorithms and The Practice of Criminal Law
Get PDFWe are in the midst of a fraught debate in criminal justice reform circles about the merits of using algorithms. Proponents claim that these algorithms offer an objective path towards substantially lowering high rates of incarceration and racial and socioeconomic disparities without endangering community safety. On the other hand, racial justice scholars argue that these algorithms threaten to entrench racial inequity within the system because they utilize risk factors that correlate with historic racial inequities, and in so doing, reproduce the same racial status quo, but under the guise of scientific objectivity.This symposium keynote address discusses the challenge that the continued proliferation of algorithms poses to the pursuit of racial justice in the criminal justice system. I start from the viewpoint that racial justice scholars are correct about currently employed algorithms. However, I advocate that as long as we have algorithms, we should consider whether they could be redesigned and repurposed to counteract racial inequity in the criminal law process. One way that algorithms might counteract inequity is if they were designed by most impacted racially marginalized communities. Then, these algorithms might counterintuitively benefit these communities by endowing them with a democratic mechanism to contest the harms that the criminal justice system’s operation enacts on them
Improving Data Sharing to Increase the Efficiency of Antibiotic
No full textThe COVID-19 pandemic has provided a stark reminder not only of the need to be prepared before a public health crisis hits, but also of the essential role of antibiotics — in a pandemic and beyond. Unfortunately, when it comes to the growing dangers posed by antibiotic-resistant bacteria, the global level of preparedness does not match the magnitude of the threat. Indeed, recent declines in private investment in antibiotic R&D are staggering