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References to Classic American Novels in Advocacy and Judicial Opinions
Get PDFWith this Journal of the Missouri Bar article, the survey of courts’ cultural markers returns to literature – particularly American literature. Besides “To Kill a Mockingbird,” federal and state courts in their written opinions have cited and quoted from other classic novels written by American authors, including Catch-22 , Moby-Dick , and The Grapes of Wrath
The Causation Canon
Get PDFIt is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon-the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish but-for cause.
This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.
The Supreme Court claimed the new causation canon represents ancient and long-held principles of common law. The Supreme Court\u27s claims about the causation canon are easily disprovable with only a cursory review of Supreme Court cases from the past forty years. This is not a case of a contested or difficult historic record. In creating the causation canon, the Court did not simply apply the common law to statutes. Instead, it constructed its own new federal causation standard that is not consistent with any state\u27s common law or even the Restatement of Torts. The Court significantly changed the common law and then magnified the significance of the change by imposing it as a default statutory interpretation canon that will apply across both civil and criminal federal statutes.
This new canon represents a significant change in the way the Supreme Court has used the common law, and it does not fit comfortably within claims made about textualism generally or substantive canons specifically. Creating a new federal common law offactual cause and imposing that newly created law as a default standard significantly raises the profile of this area of statutory interpretation and demands greater scholarly inquiry
The Case of the Missing Device Patents, or: Why Device Patents Matter
Get PDFA company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term restoration ) ask for one. In contrast, most drug companies entitled to this same patent extension ask for one.
In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how they do it, rather than by their composition, and because the device framework, unlike the drug framework, does not offer a regulatory advantage to companies that make exact copies, the most important moment in the lifecycle of a new medical device is the moment a competitor designs an alternative device that accomplishes the same end result. This can happen within a few short years. By way of contrast, for drug innovators the critical lifecycle moment is generally no earlier than expiry of the active ingredient patent, which generally happens later. In other words, medical devices have much shorter commercial lifecycles. While some suggest that medical device patents are therefore less important than drug patents, our explanation indicates only that the length of the patents is less important. Recent empirical research (Graham 2009, Simon 2020) describes the role that medical device patents play early in the product lifecycle often before regulatory approval focusing on the foundation they provide for efficient exchanges of information and market transactions. Our paper builds on their work by (1) offering a description, grounded in reflection on the essential nature of the two regulatory frameworks, of the differing roles play by drug and device patents, and (2) offering an additional supportive data point in that, although device patenting is steadily increasing, eligible device companies generally do not bother seeking patent extensions. It also illustrates the role that regulatory design can play in dictating the value of patent length, which should be important for policy planners
Book Review: For Labor to Build Upon: Wars, Depression and Pandemic, William B. Gould IV, Cambridge University Press, 2022
Get PDFDespite truly noteworthy workplace organizing and strikes across the country—from Amazon, Starbucks, Peet’s Coffee, and now Trader Joe’s to the nascent movements in the heart of the tech sector—union membership is not keeping pace with the growing workforce. Recent data from the Bureau of Labor Statistics shows that the “share of US workers belonging to labor unions hit a historic low last year.” What’s up? This is the question William Gould addresses in his latest book, For Labor to Build Upon: Wars, Depression and Pandemic. Gould traces how the U.S. labor movement got to where it is today and proposes a course of action to reverse the downward trend of the past fifty-plus years. Gould, a professor emeritus at Stanford Law School, is a seasoned labor arbitrator and former Chair of the National Labor Relations Board (“NLRB”) under President Clinton. In recent years, Gould—a member of the National Academy of Arbitrators for over half a century—has remained active in the labor law community, serving as Chair of the Agricultural Labor Relations Board in California. Among Gould’s many notable accomplishments, my fellow baseball enthusiast successfully mediated an end to the long Major League Baseball players’ strike in the mid-1990s
The Curious Case of Tort Liability for a Defective Product That the Defendant Did Not Make, Sell, or Distribute
Get PDFRarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law. The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the courts by bare-metal equipment is determining under what circumstances the manufacturer or seller of a product that is reasonably safe at the time of sale, and then made unreasonably unsafe by the post-sale addition of defective parts manufactured and supplied by third parties, may be liable to a person injured by that combined equipment. Upon examination, this turns out to be a more difficult and subtle problem than it may first appear. Especially for courts not accustomed to analyzing products liability issues, there can be a temptation to analyze the problem somewhat casually—thereby failing to securely situate it within the specific and quite different doctrinal frameworks in which it can arise. Some federal courts, including the U.S. Supreme Court, have yielded to that temptation. As a result, these courts have not sufficiently appreciated that this issue presents very different conceptual challenges and requires dramatically different consideration and analysis, depending on whether it arises in the context of a negligence claim or in the context of a strict products liability claim. Failure to appreciate the different nature of the problem in the context of these two quite different causes of action has led some courts, including the U.S. Supreme Court, to offer a single, univocal approach to this problem that both oversimplifies and overcomplicates the matter. Specifically in the case of the U.S. Supreme Court, its holding, opposed by a vigorous dissent, produces a set of rules that are at the same time both inconsequential in the negligence context and conceptually incoherent in the context of a strict products liability claim. This article describes and analyzes this fascinating issue, including the recent U.S. Supreme Court decision which squarely addresses it. It proposes an approach to future consideration of the problem by courts that grounds the analysis in the specific doctrinal frameworks within which the issue may arise and explains the very different qualities and challenges that the issue presents in these different doctrinal contexts
Federal Common Law’s Long Shadow: Shedding Light on State Law Rights to Postpetition Default Interest
Get PDFHistorically, the law imposed harsh penalties on debtors who could not meet their obligations. One regime dismembered the debtor’s body and proportionally distributed it to creditors. Rejecting these draconian penalties, the United States Constitution empowered Congress to enact federal bankruptcy legislation. Bankruptcy laws in the United States helped the “unfortunate” debtor get a fresh start while providing creditors with “prompt and effectual” administration of the debtor’s unmet obligations. In order to accomplish these policy objectives, Congress granted equitable powers to bankruptcy courts. These powers allow bankruptcy courts to occasionally adjust parties’ rights under non- bankruptcy law and fairly distribute the debtor’s assets among creditors. The process of balancing equities between the debtor and her creditors, as well as between creditors, is a central inquiry of bankruptcy law analysis
What Lawyers can Teach Their Employed Law Students about \u27Impactful Legal Writing\u27
Get PDFThis article concerns the value of teaching employed law students about the potency of “impactful legal writing” – legal writing that can have a substantial impact on someone other than the student writer. Much of the employer’s most instructive teaching about impactful legal writing occurs at the beginning of an assignment, rather than solely during review after the student has completed the assignment. This article identifies four ways an employed law student’s impactful writing when fulfilling assignments differs from the effect of students’ academic writing in law school. Each of the four ways enables the employer to deliver practical lessons about impactful legal writing – lessons that can serve present clients and enhance the student’s legal career
Overcoming Barriers to Documenting Institutional Knowledge
Get PDFIt is inevitable—employees come and go in libraries. When they leave, they take their institutional knowledge out the door with them unless it is captured before they go. Documenting institutional knowledge is crucial for continuity of service. Anyone who has ever inherited a department or started at a new library with highly reined and involved procedures knows that learning how and why processes are managed can be overwhelming. If there is no documentation to explain things, library staff can be stymied for months as they get up to speed, severely impacting productivity and morale. Knowing all of this, many libraries still struggle to record procedures. here are many reasons for this struggle, some of which involve individual employees and some of which are systemic. Addressing these barriers is foundational in every institution to ensure a stable library infrastructure
PARTY SELF-EMPOWERMENT FROM PREPARATION FOR MEDIATION SESSIONS
Get PDFIf parties are well-prepared before mediation sessions, they will be knowledgeable, confident, and assertive so that they can exercise their decision-making authority as well as possible. Well-prepared parties can make decisions before and during mediation sessions rather than simply relying on mediators to promote their self-determination. In other words, they will feel more empowered to participate productively. Depending on the circumstances, mediators, lawyers, courts, and/or mediation programs may help parties get prepared