University of California Hastings College of the Law
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Restorative Justice Diversion as a Structural Health Intervention in the Criminal Legal System
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Compelling Trade Secret Sharing
No full textThe unprecedented COVID-19 virus has brought to the forefront many challenges associated with exclusive rights in information, data, and know-how, all of which may constitute protected trade secrets. While patents have received more attention, trade secret information has limited the ability to perform research, develop, test, gain regulatory approval for, manufacture, and distribute globally and at sufficient scale and affordable prices the needed vaccines, therapeutics, diagnostics, medical devices, and personal protective equipment. Voluntary licensing efforts have proven inadequate to supply pandemic needs. Thus, compelling the sharing or licensing of trade secrets is needed not only to properly address COVID-19, but more importantly to address future pandemics and other serious global problems such as climate change.
This Article explains the nature of trade secrets and their protection. It then describes the failures in COVID-19 responses resulting from trade secrets that were not voluntarily licensed. It explains why patent law disclosures have been inadequate to assure competitive global research, development, and production.
Given the need for compelled trade secret sharing, this Article surveys the relevant international intellectual property law treaties addressing trade secrets. It demonstrates that, consistent with international law obligations, governments are free to compel trade secret sharing. Further, governments may not be obliged to award compensation for such sharing when regulating to address public health. Given this national freedom to act, this Article then provides numerous examples of existing United States, European, and other authorities that have been or could be used to compel the sharing or licensing of trade secrets. It also notes the potential to adopt more explicit legislation authorizing compelled or induced behaviors. This survey of authorities illustrates that compelling trade secret sharing or licensing should be unobjectionable whenever there is a need to protect lives, health, or the economy. Accordingly, this Article provides a first critical step toward rethinking the nature of international trade secret protections and seeks to develop the political will for governments to protect the global public from the harms that trade secret rights can generate
Science, Creativity, and the Copyright Clause
No full textThe Constitution provides Congress the power to enact copyright laws in order “To promote the Progress of Science.” Some statements by the modern Supreme Court may be interpreted to suggest that “the Progress of Science” is synonymous with creativity, and most scholars articulate the purpose of copyright law in terms of encouraging creative expressions. This is troubling, however, because not all creative expressions yield public knowledge; indeed, some yield public harm. For example, false statements of fact that are made to purposefully deceive are highly creative, but those statements inhibit the spread of knowledge and may lead to demonstrably harmful outcomes. Therefore, creativity does not always promote the progress of science.
This Article argues that the Copyright Clause’s reference to the progress of science imposes a public-harm boundary on the type of creativity that copyright should encourage. As support for this argument, the Article relies on the plain meanings of “Progress” and “Science,” past judicial interpretation of the Clause, copyright theory, and public-value themes in other intellectual property doctrines. The Article proposes that courts should deny copyright protection for expressions that are unlawful or, in other words, those that fall outside of First Amendment protection. It further contemplates that Congress might deny protection for some limited categories of expression that receive First Amendment protection. Finally, this Article responds to a counterargument that is based on free speech principles. The Article concludes that although creativity is essential to realizing the progress of science, the progress of science should once again require that creative works not be harmful to the public
The Role of Constitutional Provisions in Protecting Artificial Reproductive Technology: A Comparative Analysis of the United Kingdom, France, Germany, Italy, and the United States
No full textArtificial reproductive technology (ART) is a common medical treatment for individuals struggling with infertility. However, accessibility depends largely on social, economic, and legal factors. This article will examine the role constitutional provisions play in protecting access to ART, comparing countries with constitutional provisions protecting the right to health like the United Kingdom, France, Germany, and Italy, with the United States, which lacks such safeguards. This article will begin by comparing the constitutional provisions protecting the right to health broadly and then explore the specific guidelines governing ART. The article ultimately finds a relationship between constitutional health protections and access to ART services, concluding that countries with constitutional provisions protecting the right to health are generally better equipped to provide ART services compared than countries with no constitutional safeguards protecting the right to health
Complex Litigation Funding: Ethical Problem or Ethical Solution?
No full textCommentators have worried that third-party funding, particularly in complex litigation, may give rise to ethical concerns. In this Essay, we explore an alternative possibility: third-party funding may solve ethical problems rather than cause them.
We explain why third-party funding can comply with the letter and spirit of the relevant ethical rules and why whether it causes or cures ethical problems depends on the setting. We note that if third-party funding agreements are properly structured—protecting, for example, lawyers’ independent judgment—they should not pose ethical problems. On the contrary, in some contexts third-party litigation funding may ameliorate tensions between clients and counsel.
We identify two settings in which third-party litigation funding may do more good than harm: first, encouraging an optimal level of private enforcement of the antitrust laws, and second, diversifying the plaintiffs’ lawyers who pursue class actions and other complex litigation.
A theme runs throughout our analysis: We should be careful to avoid a mistake that might be characterized as a variation on the naturalistic fallacy—that the practices to which we are accustomed are necessarily good. Instead, we suggest returning to first principles to determine whether third-party litigation funding is good, bad, or indifferent—a conclusion that may well vary by context
