Hauptman-Woodward Medical Research Institute
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Baldy Center Podcast Episode 8 Picture
No full textLithograph, 1830, depicts the event of 1520, as a small crowd gathered to watch Martin Luther burn the papal bull Exsurge Domine from Leo X in front of a church in Wittenberg. Image courtesy of the U.S. Library of Congress.https://digitalcommons.law.buffalo.edu/baldy_center_images/1007/thumbnail.jp
Standing for Democracy: Is Democracy a Procedural Right in Vacuo? A Democratic Perspective on Procedural Violations as a Basis for Article III Standing
Get PDFMany commentators express concern that democracy in the United States is under threat, whether from the pressure of concentrated wealth and structural racism, government secrecy and authoritarian tendencies, an outdated constitutional structure and old-fashioned corruption, or perhaps a combination of them all. Against this background, this Article argues that the Supreme Court’s treatment of procedural rights for determining standing—the key that opens the door to federal court—is an overlooked factor in contributing to democratic erosion. According to the Court, violation of a congressionally conferred procedural right that does not safeguard some separate, non-procedural, concrete interest of plaintiff—a “procedural right in vacuo,” the Court calls it—does not constitute Article III injury, and so the right holder is barred from seeking redress in a federal court. This is true, the Court says, even in cases in which the “procedural right” at issue is a statutory right to participate in public decision-making. Conceding for present purposes that standing requires a showing of a particular and concrete injury, this Article argues that a congressionally conferred right to participate in the processes of self-governance has value in and of itself, and its infringement should be treated as Article III injury even if the alleged violation does not cause financial loss or damage to some other, non-procedural interest of the right holder. The Court’s devaluation of congressionally conferred procedural rights in its standing doctrine not only has diminished opportunities for democratic practice, but also has destabilized political institutions that support democratic values. Overall, the Article seeks to reorient standing doctrine in ways that support participatory norms as well as intrinsic process values that serve as guardrails of democracy
Overqualified and Underrepresented: Gender Inequality in Pharmaceutical Patent Law
Get PDFPharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent litigators and only one-quarter of lawyers who prosecute litigated pharmaceutical patents — numbers far below the share of women in the legal profession overall. The usual explanation for any lack of representation in patent practice is the “pipeline” problem — that is, an insufficient number of women in the technical fields underlying patent law. But our study finds little support for any pipeline problem. Indeed, recent studies indicate that more women law students have scientific undergraduate and graduate degrees than their male counterparts. Interestingly, the gender gap among pharmaceutical patent lawyers does not carry over to public sector work. The U.S. Patent and Trademark Office is the one place where our study finds anything close to parity: 42.3% of pharmaceutical patent examiners are women and 57.7% are men. This finding adds to a nascent literature documenting vast disparities in gender representation in the private versus public sectors, both in patent law and in law practice more generally. It also suggests that the lack of women doing patent law in private practice in the pharmaceutical field probably is not due to any pipeline problem; instead, it likely stems from structural inequalities that permeate the highest levels of corporate law firms. Those firms, as well as their pharmaceutical company clients, all say that diversity is important. But, as our study shows, there is a disconnect between rhetoric and reality. Fully solving structural inequality in law practice is a formidable task, but this article sketches a few ways in which firms and their clients could help create a patent bar that is more diverse and inclusive
The Principle of Party Presentation
Get PDFOur adversarial system of adjudication is characterized by active parties and (relatively) passive judges; the parties identify the issues in dispute, and the judge decides those issues. Sua sponte decision-making—whereby a judge raises and decides new issues not presented by the parties—undermines this adversarial system. For decades, courts and commentators have struggled to explain when sua sponte decision-making may be appropriate. That issue was particularly important to the late Justice Ruth Bader Ginsburg, who has been described as “The Great Proceduralist.” In a series of oral arguments and opinions during her tenure on the Supreme Court, Justice Ginsburg repeatedly invoked the “principle of party presentation”—a term used in comparative procedure literature to describe the principle that the parties, not the judge, should determine the issues to be decided in a case—and identified real limits to judicial discretion in raising new issues. One of her last opinions, in United States v. Sineneng-Smith (2020), reaffirmed a robust principle of party presentation and rebuked a court of appeals that raised a new issue without sufficient justification, relegated the parties to a secondary role in the litigation, and ultimately disregarded the issues they presented. In Justice Ginsburg’s opinions, including Sineneng-Smith, litigants and judges alike may find useful guideposts that constrain judicial discretion in deciding whether to raise new issues sua sponte. Judges considering whether to raise a new issue sua sponte should determine whether they are required, forbidden, or permitted to do so; and where permitted, they should explain how specific institutional interests of the judiciary balance or outweigh the parties’ interest in controlling the litigation. If a judge wishes to depart from the principle of party presentation, the judge should explain the specific circumstances and the interests that make the case exceptional—something more than the judge’s having what he or she thinks is a “better” theory of the case
Antitrust Class Actions in the Wake of Procedural Reform
Get PDFWhat is the current vitality of antitrust enforcement? Antitrust class actions—the primary mode of competition oversight—has weathered two decades of procedural reform. This Article documents the effects of those reforms. Relying on an original dataset of over 1300 antitrust class action settlements, this Article finds such cases alive but far from well. Certain suits do succeed on an impressive scale, returning billions of dollars to victims. But class action reform has made antitrust enforcement narrower, more time-consuming, and costlier than only a decade ago. And, as this Article’s sources reveal, new battle lines are forming. Across the political spectrum, people are trumpeting antitrust as the next great hope to resolve trade issues, equalize wealth inequity, and reform Big Tech. Even amid these rising calls, class action opponents continue to campaign for more reform. This Article describes those efforts and provides the essential data to repel them
Baldy Center Podcast Episode 4 Picture
No full texthttps://digitalcommons.law.buffalo.edu/baldy_center_images/1003/thumbnail.jp