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War Again – The Middle East and the Conflict in Context
No full textSpeaker: Prof. Adam Oler, Associate Professor of National Security Strategy and the Associate Dean of Academics, National Defense Universit
Maritime Law and Global Security
No full textDiscussants:
Prof. James Kraska, Professor of International Maritime Law at the U.S. Naval War College and Visiting Professor at Harvard Law School
Prof. Raul (Pete) Pedrozo, U.S. Naval War College, Professor of International Law, Stockton Center for International Law
Capt. Robin A. Ellerbe, USCG, Chief, Office of Maritime & International La
Luncheon Presentation: Update on China: Lawfare, Technology, and More
No full textSpeaker: Mr. Dean Cheng, Senior Advisor to the China program at the U.S. Institute of Peac
When John Locke Meets Lao Tzu: The Relationship Between Intellectual Property, Biodiversity, and Indigenous Knowledge and the Implications for Food Security
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Discharging Equity: Harrington v. Purdue Pharma L.P. and the Validity of Nonconsensual Third-Party Releases
Get PDFIn September 2019, Purdue Pharma L.P. petitioned for bankruptcy in the Southern District of New York. Purdue, which the Sackler family had owned and operated for decades, developed and aggressively marketed addictive opioid products, contributing to the modern opioid epidemic. The tsunami of litigation arising from the opioid epidemic gave rise to claims against Purdue and the Sackler family estimated to total more than $40 trillion, causing Purdue to petition for Chapter 11 bankruptcy.
In Purdue’s plan of reorganization, it employed a nonconsensual third-party release to discharge claims against the Sackler family. Nonconsensual third-party releases controversially enjoin parties to a bankruptcy from pursuing actions against third-party nondebtors. The Second Circuit affirmed a bankruptcy court’s power under the Bankruptcy Code to confirm a plan of reorganization containing such a release. In Harrington v. Purdue Pharma L.P., the Supreme Court will determine whether the Bankruptcy Code authorizes a court to approve a plan of reorganization which includes a nonconsensual release extinguishing claims held by nondebtors against nondebtor third parties.
The Court should affirm the Second Circuit’s decision permitting Purdue’s utilization of nonconsensual third-party releases. Nothing in the Bankruptcy Code forecloses the use of such releases. Rather, sections 105(a) and 1123(b)(6) of the Code authorize their use, which accords with historical exercises of equity. As long as a bankruptcy court considers the factors which the Second Circuit employed and confirms that proper notice was given to creditors before extinguishing their claims against nondebtors, the use of nonconsensual third-party releases will inure to the benefit of creditors and debtors undergoing Chapter 11 bankruptcy proceedings
Facing Up to Internet Giants
Get PDFMancur Olson claimed that concentrated interests win against diffuse interests even in advanced democracies. Multinational companies, for example, work well in unison to suit their interests. The rest of the public is not motivated or informed enough to resist them. In contrast, other scholars argued that diffuse interests may be able to fight back, but only when certain conditions prevail. One of the conditions for the success of diffuse interests is the intervention of national and international courts. Courts are able to fix problems affecting diffuse interests. Courts can also indirectly empower diffuse interests by initiating deliberation to inform the public. This paper investigates the jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. It argues that these international courts help consumers, a diffuse interest group, succeed in their struggle against internet companies, a concentrated interest group
Too Young to Suspend: Ending Early Grade School Exclusion by Applying Lessons from the Fight to Increase the Minimum Age of Juvenile Court Jurisdiction
Get PDFIn many respects, the evolution of juvenile court reform and school discipline reform follow similar trajectories. This Article begins by tracking those respective evolutions. Part I outlines the evolution of the juvenile court system in the United States and focuses on the fledgling system’s distinction of children from adults and its “rehabilitative ideal” that children could outgrow challenging behavior if given the right treatment and services. After a long period of “adultification” of the juvenile court in response to rising crime rates, more recent reform efforts have focused on returning to the early court’s rehabilitative model, including policies that would keep young children out of juvenile court altogether.
With the context of the juvenile court’s evolution in mind, Part II tracks the history of exclusionary school discipline, which is defined as any school disciplinary action, typically a suspension or expulsion that removes a student from his or her typical education setting. Many of the same rationales for the “adultification” of juvenile court, including the myth of the juvenile superpredator and the rise of a zero-tolerance approach to discipline, led to a sharp increase in the use of exclusionary discipline throughout the latter half of the twentieth century. However, with a growing body of research showing the harm and inefficacy of exclusionary discipline, advocates for discipline reform have pushed to decrease its use, which has included proposals to ban or limit exclusionary discipline for young students.
The efforts to protect young children from both juvenile court intervention and exclusionary discipline are explored respectively in Parts III and IV. Part III describes the movement to “Raise the Minimum Age” of juvenile court jurisdiction as an avenue to bar court processing for young children. Notably, Part III outlines the variety of rationales that have been used to support raising the minimum age and charts the success of the movement in the last decade.
Against this backdrop, Part IV turns to the movement to end exclusionary discipline for young children. Although important differences between the juvenile court and school discipline exist, many of the same rationales that support keeping young children out of juvenile court also apply to protecting young children from exclusionary discipline. Despite these similar rationales, which are explored in Part IV, the movement to end exclusionary discipline for young children has had less success, with fewer states adopting these measures. Further, most states that have passed laws limiting school exclusion for young students still allow exclusions to move forward in many circumstances. Part IV tracks existing statewide efforts to limit exclusionary discipline for young children and describes some of the challenges faced by these reform efforts.
Despite the challenges, there are also opportunities. Part V highlights lessons learned from the “Raise the Minimum Age” movement to make recommendations for building momentum for states to end exclusionary discipline for young children. Given the willingness in many states to protect young children from juvenile court intervention, there is hope that similar arguments and advocacy strategies can be utilized to advance statewide policies that will protect those same young children from the harm of exclusionary discipline
A Codified Liability Regime to Stimulate Greater Investment in Subpatentable Innovation
Get PDFThe global intellectual property system rests on a distinction between exclusive property rights and free competition. Exclusive rights vary in strength and intensity, but the opposite of protection is almost always free competition. Distinctions of intensity are drawn in terms of the length of protection given to different subject matters plus variable lists of exceptions and limitations to exclusive rights. But the bottom line is that, when protection is not available under the existing system, free competition prevails, and vice-versa (i.e., where there is exclusivity, free competition is deferred for a specified period of time).
This Article departs from a different position. It suggests that this black-and-white approach does not work well for subpatentable innovation, i.e., innovation that cannot meet the non-obviousness criteria of patent law but that nonetheless constitutes a novel and useful contribution to existing technical knowledge. The reason is that free competition often overwhelms and limits the incentives to invest in risky subpatentable innovation from the outset because successful innovations obtain no exclusive rights by default, and competitors may dominate in practice once the validity of the innovation becomes an established fact. The very success of any given innovation thus stimulates competitors to enter the market, which threatens to impede the first innovator’s ability to recuperate initial investment costs in a risky venture, not to mention profits.
To address this problem, some countries have enacted sui generis regimes of exclusive property rights, notably in the form of utility model laws. However, this model necessarily evokes the question of either too much or too little protection. It only affords the first innovators an opportunity to recuperate their costs if they meet a relatively high standard of eligibility, thus discouraging the undertaking of such a risk from the outset. Moreover, imitating patents at the subpatentable level raises serious questions of legitimacy in the first place, plus a very real and long-term set of impediments to free competition.
This traditional approach thus ignores a second category of property rights that sounds in liability rules instead of property rights, a distinction first recognized by Guido Calabresi and Douglas Melamed. Recognizing this distinction could in turn open the door to a form of intermediate protection that seeks to address the risk of investment in subpatentable innovation without the social costs of exclusivity. The history of intellectual property suggests that we have reached the outer limits of exclusive intellectual property experiments. Instead, the time has come to try a liability rule where barriers to entry are as undesirable as too much exclusivity. A carefully constructed liability rule could provide an intermediate format for an intermediate subject matter, without impeding the principle of free competition