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The Violence of Free Speech and Press Metaphors
Full text linkToday, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.
The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition and force order the rungs on a ladder climbing toward truth. Power and violence are at home in the speech marketplace. Unsurprisingly, these same characteristics animate the defining metaphor for a key free speech institution: the press is a “watchdog.” In First Amendment law, the press’s role is to attack government for its misdeeds.
As linguists have shown, metaphors are not simply rhetorical icing. They shape human understanding and behavior—sometimes in dangerous ways. The marketplace and watchdog metaphors have this power, and with it they have helped to create a speech environment where violence can feel routine.
No easy fix exists for the violence in our public sphere. But new metaphors could help us reconceptualize the ways we communicate. This Article explains how
Towards FDA–USPTO Cooperation
Full text linkThe Food and Drug Administration (“FDA”) and U.S. Patent and Trademark Office (“USPTO”) play complementary roles in driving pharmaceutical innovation. Yet, for the most part, the agencies conduct their affairs without regard for one another. Recent calls for a “whole of government” approach to reduce this departmentalism have led to only modest initiatives. Collectively, the FDA and USPTO have announced mandates that they have no intention of enforcing; conducted cross- training in topics that their employees will most likely never use; and resisted proposed legislation that would formalize their relationship.
Current agency intransigence represents a lost opportunity to further the goals of the Hatch–Waxman Act: encouraging the labors that lead to pharmaceutical innovation, while also distributing the fruits of those labors to the public through low-cost, generic medications. At a minimum, agency cooperation could lead to consistent and accurate terminology. The FDA and USPTO should coordinate their policies toward adjusting patent terms to account for regulatory delays. They should also act jointly to enhance the Orange Book, an FDA publication that in part acts as a clearinghouse for pharmaceutical patents. The USPTO should issue patents along the lines of the inventive categories identified with the Hatch–Waxman Act. For its part, the FDA ought to take advantage of USPTO resources to maintain the integrity of the Orange Book by striving toward accurate patent listings.
The FDA’s anomalous “use code” practice deserves reconsideration. The FDA does not assess the scope of patents claiming methods of medical treatment based on the instrument the USPTO granted. Rather, it relies upon brand-name drug companies to characterize these patents using 250 characters or less. Use codes defy foundational patent law principles and have been prone to abuse. This dubious approach to complex legal texts approved by a peer agency should be modified or abolished.
The FDA and USPTO are also well-positioned to consider the idiosyncratic and possibly unbalanced practices of pharmaceutical patent enforcement. During these cases, which for the most part arise in just 2 of the 94 federal districts in the United States, generic drug companies must explain at the outset why they don’t infringe— even though the patent proprietor bears the burden of proving infringement. Congress also afforded brand-name drug companies the ability to sue a dozen or more generic drug companies in one courtroom at one time, for no other reason than that they allegedly infringe the same patent. These and other litigation practices bear reassessment.
Finally, the USPTO routinely issues patents with dozens or hundreds of claims. It also issues multiple patents covering the same drug. Such prolix USPTO work product has resulted in coping strategies by courts, which must encourage or cajole patent proprietors into choosing just a few of these claims to be subject to adjudication. That so many pharmaceutical patent claims remain unadjudicated breeds uncertainty, particularly with respect to FDA administration of regulatory exclusivities. These issues should be addressed through changes to agency practice or to the wording of the Hatch–Waxman Act
The (Still) Unexplored Possibilities of a Poetics of Law
Full text linkIn this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is chiefly interested in “how the legal imagination expresses itself in the judicial opinion,” and he frames that interest around a set of provocative questions about the form of the judicial opinion, what it demands, how it tells its story, how it manages its structural tensions, its constraints and possibilities, and the complex expectations that are brought to it.
White is also an exceptional reader of poetry, and this chapter yokes the judicial opinion to the poem (and the judge to the poet) in order to put his questions in the service of a larger preoccupation: “what is it about these two forms of expression that makes them sometimes so very much more” than “mere message” or legal rule. To help his reader understand poetry, White reproduces two short essays by Robert Frost, “The Constant Symbol,” and “The Figure a Poem Makes.” White then asks, using Frost’s locution, “what figure an opinion makes.” This is the question with which I begin my musings—to think and ponder along with White what figures a poem and an opinion make, what inheritance they draw from, what forms of imagination they require and excite, and how they manage the tensions of their forms. In the second part of the essay, I come at the juxtaposition of these genres from another direction, considering when they cross boundaries and gesture toward the meaning making capabilities of the other. I look at a poem that has qualities of a judicial opinion and a judicial opinion that has qualities of a poem in order to consider shared inheritances and shared forms of imagination
“We Do No Such Thing”: \u3ci\u3e303 Creative v. Elenis\u3c/i\u3e and the Future of First Amendment Challenges to Public Accommodations Laws
Full text linkIn 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws
Cultural Property: “Progressive Property In Action”
Full text linkCultural property law fulfills many of the normative and jurisprudential goals of progressive property theory. Cultural property limits the normal prerogatives of owners in order to give legal substance to the interests of the public or of specially protected non-owners. It recognizes that preservation of and access to heritage resources advance public values such as cultural enrichment and community identity. The proliferation of cultural property laws and their acceptance by courts has occurred despite a resurgent property fundamentalism embraced by the Supreme Court. Thus, this Article seeks to explicate the category of cultural property, its fulfillment of progressive theory, and its success in an adverse legal environment. The article originated as part of a symposium responding to Rachael Walsh’s Property Rights and Social Justice: Progressive Property in Act
The Health and Human Rights Impact Assessment: The Preeminent Value of Equity
Full text linkThe Health and Human Rights Journal launched 30 years ago at the dawn of the era of health and human rights. Health and human rights were more often viewed as being in tension than in harmony, and there was little guidance on the right to health itself. With the unabashed discrimination against people living with HIV/AIDS in the name of public health at the forefront of our minds, Jonathan Mann and one of us (LOG) sought to provide practical guidance on when and how human rights could be limited in the name of public health, developing the first health and human rights impact assessment. A singular lesson from the AIDS pandemic, amplified by the COVID-19 pandemic, is that equity must be at the core of health and human rights assessments.
Non-discrimination is at the core of human rights; without this principle, rights could practically be denied at will. Under human rights law, this is a far-reaching principle, encompassing not only intentional, facially discriminatory measures, but also substantive, indirect discrimination. Equity has also moved to the core of global health. Even with significant overall global health improvements during the Millennium Development Goals era, inequities within countries stubbornly persisted. And while the life expectancy gap between richer and poorer countries narrowed, the difference remains nearly a full generation. Meanwhile, the AIDS movement and an increasingly empowered health and human rights civil society forced the world\u27s attention on marginalized and discriminated against populations.
Health and human rights assessments now regularly include equity as a core component, along with participation of affected populations. Several UN human rights special rapporteurs have encouraged human rights impact assessments’ use. With these assessments’ growing potential and this deepening legal recognition, it is time to recognize that as indispensable tools of governments and businesses to protect against human rights violations, and with relatively low resource requirements, conducting equity-focused, participatory health and human rights assessments is an immediate, core obligation of the right to health. UN human rights bodies should endorse this understanding, and along with the World Health Organization, offer guidance. Civil society organizations need not wait until this happens, though, to press governments to incorporate these assessments in their legal frameworks – an advance in health and human rights that could be transformative
Teaching Global Health Law: Preparing the Next Generation for Future Challenges
Full text linkFollowing from sweeping law reforms across the global health landscape, there is a need to prepare the next generation to advance global health law to ensure justice for a healthier world. Educational programs across disciplines have increasingly incorporated the field of global health law, with new courses examining the law and policy frameworks that apply to the new set of public health threats, non-state actors, and regulatory instruments that structure global health. Such interdisciplinary training must be expanded throughout the world to prepare future practitioners to strengthen global health law — ensuring a foundation for global health in legal studies and law and global health studies. Meeting this imperative for global health law teaching — establishing academic courses and textbooks on global legal responses to shared health threats — will be necessary to support students to address the global health challenges of the future
The Law of General Average
Full text linkPart of a ship\u27s cargo is jettisoned in order to save the vessel and the remaining cargo from imminent peril. How should the loss be shared among the cargo owners? The law of general average, an ancient principle of maritime law, prescribes that the owners share the loss proportionally according to the respective values of their cargo. We analyze whether the law of general average is a truthful and efficient mechanism. That is, we investigate whether it induces truthful reporting of cargo values and yields a Pareto efficient allocation in equilibrium. We show that the law of general average is neither truthful nor efficient if owners have expected utility preferences, but is both truthful and efficient if owners have maxmin utility preferences. We discuss why maxmin behavior may be reasonable in the general average context
\u3ci\u3eMorrison\u3c/i\u3e’s Flawed “Focus” Test and the Transnational Application of the (Misinterpreted) Wire Fraud Statute
Full text linkFederal prosecutors\u27 mantra is “when in doubt, charge wire fraud.” Section 1343 can be applied to any scheme to defraud--a capacious term that encompasses everything from computer scams to bribery and smuggling--in which a wiring (by phone, text, internet communication, or the like) can be identified. Given the explosion of transborder criminality--especially that conducted by wire--the geographic scope of the statute is of great practical importance. This Article resolves a circuit split by applying the Supreme Court\u27s presumption against extraterritoriality and concluding that nothing in § 1343 rebuts that presumption. It then attempts to answer the critical question of what constitutes an acceptably “domestic” case as opposed to a forbidden “extraterritorial” one. For example, consider the FIFA corruption case in which foreign entities allegedly bribed foreign soccer officials to secure foreign broadcasting rights to foreign soccer matches. Will the fact that the bribes were wired from a New York bank account suffice to make this an acceptably domestic prosecution? According to the Supreme Court, one resolves such questions by identifying if there is conduct occurring within U.S. territory that is the “focus” of the statute. The lower courts have largely identified the “focus” of the statute to be the wiring element, such that regardless of the location of perpetrators, the victims, or the fraudulent conduct, the fact that a wiring crosses a U.S. border means that federal prosecutors can pursue the case. The answer, then, in the FIFA corruption cases was “yes,” but should it have been?
Given that the overwhelming majority of federal criminal statutes do not speak to their geographic scope and the strength of the Court\u27s presumption against extraterritoriality, the applicability of most federal criminal statutes to transborder conduct will turn on what courts determine the statutes\u27 focus to be. The literature is filled with critiques of the Court\u27s presumption, but almost no attention has been paid to the “focus” test. This Article, then, fills a serious gap in the literature by scrutinizing the Court\u27s novel “focus” test and demonstrating not only that the test ignores the common-law approach and the Court\u27s own traditional elements-based analysis but also that it is fatally subjective, unworkable, and arbitrary in its results. The lower courts\u27 analysis of the statutory focus is often cursory and reliant on inapposite caselaw. This Article addresses this analytical deficiency by identifying a taxonomy of criteria that ought to be applied to federal statutes to determine their focus and illustrating how these criteria are applied by reference to the wire fraud statute.
Finally, this Article makes the case that the reason the courts have thus far failed to identify a textually sound and practically sensible “focus” for § 1343 lies not only in the flawed “focus” test but also in the incoherency of the wire fraud offense resulting from the Supreme Court\u27s disregard of the statutory text. This Article critiques the Court\u27s rewriting of § 1343 to eliminate both the mens rea mandated by Congress and the statute\u27s requirement that the wiring have a close nexus to the furthering of the fraud, a change that applies to all wire fraud cases, not just transnational prosecutions. This Article demonstrates, by reference to criminal law theory, that § 1343 is not a crime at all, at least measured by traditional requirements. To return to the “focus” test, it is the Supreme Court\u27s misinterpretation of the statute that requires the lower courts\u27 nonsensical conclusion that the “focus” of a criminal prohibition is an unknowing, unintentional act that is innocent on its face and has no necessary connection to the execution of the culpable scheme
Hard Truths About Soft IP
Full text linkPeople routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators or advisers. So what’s so soft about “soft IP?” Simple: women are more likely to be practitioners, partners, and professors within copyright and trademark law, and softness has been associated with women for centuries. Softness is resilient, flexible, and supportive, but “soft IP” is rarely invoked to celebrate these connotations. Instead, the term implies, intentionally or not, that people who practice copyright and trademark law are less capable of hard work than patent practitioners. Given the oppression faced by women and people of color in legal practice, little could be further from the truth. This Essay traces problems with presenting patents as hard, as well as the shortcomings of sidelining copyrights and trademarks as soft. It concludes that the term “soft IP” must be retired and replaced. Sometimes, the right decision is specificity. But there is another alternative. Lawyers can opt for a more sweeping term: “intellectual property.