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Starting the Conversation: The Need for a Pre-Launch “Skinny Labeling” Dispute Resolution System
Get PDFSince Congress adopted the Hatch-Waxman Act in 1984, generic drug manufacturers have been able to come to market while certain uses of brand-name drugs are still patented by “carving out” the patented uses from their labeling. For example, suppose a brand-name drug is used to treat both tonsillitis and strep throat, but the drug company has patented only the specific method of using its drug to treat only strep throat. In this scenario, a generic manufacturer can still sell a generic version of the drug, but only for the non-patented use of tonsillitis treatment. To do this, the generic manufacturer would “carve out” all descriptions and references to the patented use of treating strep throat from the drug’s labeling—a process known as “skinny labeling”—and leave only the non-patented use
Breaking Kayfabe
Get PDFThe membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all? To answer these questions, the Article looks to an unusual source: professional wrestling. Wrestlers have a term for the official story told to the audience, the fiction the performers maintain for the benefit of the show: kayfabe. While kayfabe was once a strict trade code of silence, nowadays just about everyone knows that wrestling is staged. Yet even today, because it is essential to the performance, wrestlers rarely “break” kayfabe—and betray the fiction—in the ring. Nevertheless, breaking kayfabe is more common than it once was, in part because performers can break kayfabe to advance their strategic goals in and out of the ring
When is Discrimination Harmful?
No full textIn Muldrow v. City of St. Louis, the Supreme Court held that Title VII does not require a plaintiff to establish material harm to prove employment discrimination. Instead, any action that is negative and affects a term, condition or privilege of employment is sufficient, if the employer took the action because of a protected trait.At first glance, Muldrow appears to be a middling case focused on a technical aspect of discrimination law. This Article argues that Muldrow has the potential to be one of the most important modern discrimination cases. If taken to its natural conclusion it will force courts to answer a fundamental question: when is discrimination harmful? It also has the potential to upend the structure of disparate treatment law by unifying harassment and non-harassment disparate treatment doctrine.The case also is critical for understanding contemporary debates about textualism. Muldrow relied on a textualist methodology. The case illustrates how textualism plays an essential role in interpreting discrimination statutes. It also illuminates textualism’s limits. This conversation about textualism’s deficits is especially salient given scholars’ recent enthusiasm for progressive textualism.This Article reveals the theoretical and practical issues facing district and appellate courts as they contend with Muldrow. It provides the first comprehensive account of the post-Muldrow case law. It predicts decades of chaotic case law, as well as the exciting possibility that courts might finally unify discrimination harm jurisprudence
Money Moves: Taxing the Wealthy at the State Level
No full textIt\u27s widely understood today that inequality is a major social problem that in turn contributes to other crises. By most accounts, tax systems are supposed to be our engines of equality. Yet in today’s United States, state and local tax systems mostly do the opposite: they take a greater percentage of the resources of the poor and middle class than of the rich.Perhaps surprisingly, the traditional view among fiscal policy experts has been that this state of affairs is correct. In this standard account, only national governments should impose progressive or redistributive taxes. While acknowledging that there would be advantages to redistributive state taxation if it could be done efficiently, many experts worry that taxing the wealthy at the state level would drive taxpayers to move to a neighboring jurisdiction with lower rates, resulting in greater economic distortions and potentially little or no additional tax revenue. Similarly, politicians and advocates have opposed recent state efforts to tax the wealthy by arguing that such taxes will drive away the rich.This Article argues that this traditional view is misguided. Recent evidence finds that relatively few wealthy households actually move in response to changes in tax policy. On the other hand, the location of taxable income—the place where wealth is legally subject to claims of the state—is quite responsive to tax rates, due to a bevy of now-standard forms of tax gaming that we detail.This distinction is highly significant because while physical relocations are hard to prevent, and indeed are good for a healthy federalism, the shifting of taxable income across borders has some ready legal solutions. As we detail here, a key feature of most state tax-avoidance schemes is the exploitation of the realization rule, the tax principle that imposes tax on appreciated property only when it is sold. States can greatly undercut this tax avoidance by instead imposing wealth or “mark-to-market” taxes on assets as they appreciate. Thus, critics of state wealth tax efforts have things exactly backwards: rather than mobility making wealth taxes self-defeating, wealth taxes are what can counter tax-avoidance mobility.Accordingly, we outline here how a truly progressive state tax system could operate. Building on earlier work, we show that standard critiques of wealth and mark-to-market taxes, such as that they would struggle to tax hard-to-value assets, are actually easy to design around. We additionally explain other anti-avoidance rules that address some of the common techniques used by the wealthy to avoid state tax, such as trusts, partnerships, over-stuffed retirement accounts, and private foundations. With these new anti-avoidance tools available to states, we argue, the standard economic account shifts to favor truly progressive state tax systems
Federal Circuit’s Filing Requirements: A Trap for Even the Experts
No full textThe Federal Circuit Court of Appeals has established itself as the most procedurally demanding appellate court in the federal system, routinely issuing notices of non-compliance even to the nation\u27s most experienced practitioners. This essay examines the pervasive nature of filing errors in Federal Circuit appeals, analyzing examples from recent cases involving prestigious law firms and institutions. Despite the court\u27s 2023 memo detailing Common Filing Errors, practitioners continue to struggle with requirements ranging from form completion and addenda formatting to confidentiality designations and caption compliance. The article argues that the prevalence of these issues among highly qualified counsel suggests a systemic problem rather than mere carelessness, resulting in increased costs and procedural delays. Potential solutions are proposed, including implementing an automated compliance checking system or adopting more flexible enforcement policies. The analysis concludes that the current situation creates unnecessary burden for all parties involved while potentially distracting from substantive legal issues at stake
Facing Faculty Fears About AI
No full textThis essay addresses a widespread but rarely voiced concern among faculty: the fear of appearing uninformed, unprepared, or even outmatched by students when incorporating AI into their teaching. While worries about cheating, hallucinations, de-skilling, and loss of control are legitimate, this essay encourages faculty to shift from fear to curiosity. It argues that acknowledging uncertainty can strengthen faculty–student relationships and model the curiosity and humility we hope to cultivate in students.It outlines two general strategies for faculty: restricting AI use when students need to build foundational skills, and requiring it when students are ready to develop professional judgment using AI tools. Both are appropriate in different courses and contexts. The essay emphasizes that both approaches require some AI literacy, and offers suggestions for how faculty can build confidence with AI and adapt existing assignments.The essay offers concrete strategies, sample language for AI policies in a wide range of courses, and practical examples of how faculty can design assignments that foster learning while using AI responsibly. It outlines approaches faculty might take depending on course goals – from restricting AI in first-year writing and doctrinal classes to encouraging thoughtful experimentation in upper-level skills, clinical, and seminar courses.It reminds readers that we are still early in the AI innovation and collective learning curve, and that what now feels intimidating may soon feel familiar – just as Zoom now does. Ultimately, the piece reframes AI not as a threat to faculty authority, but as a new opportunity to connect, experiment, and grow with students
Training Humanoids to Use Good Dispute Resolution Language
No full textThis short essay uses satire to spotlight the entrenched, misleading terminology widely used in the dispute resolution field, especially in legal and academic settings. Drawing on metaphors of humanoids, bots, and malware, it critiques outdated jargon like “facilitative” and “evaluative” mediation and proposes clearer alternatives derived from Real Practice Systems theory. It describes efforts to train an AI tool, the RPS Negotiation and Mediation Coach, to model improved language use and nudge human users toward better decision-making. Though light in tone, it reflects a serious commitment to reforming the way we talk about and practice negotiation and mediation