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Patent Pool Outsiders
Get PDFIndividuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents. The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the consumer electronics industry. Because these transaction cost savings appear to outweigh the most common competition-related concerns patent pools raise, antitrust authorities generally view these private pools favorably. Others are less sanguine. Most patent pools are incomplete: for the technologies they cover, not all relevant patents are included. The reason for this is understandable: patent holders sometimes believe they can negotiate for higher royalties by declining to join an existing pool. Antitrust regulators are aware of this behavior, but do not worry much about it. A growing number of economists and legal scholars believe, however, that this outsider behavior may impose higher costs on pool licensees, detracting from the central benefit that patent pools offer — transaction cost savings. These commentators urge antitrust regulators to regard patent pools with greater caution and skepticism. These calls for caution, however, are based mostly on theories about how patent pools should work, rather than empirical study. Remarkably, little research has been done to shed light on the actual impact of patent pool outsiders. Through an original ethnographic study, this Article seeks to remedy this gap. A set of the most notable and public episodes of outsider behavior were collected from industry press reports, case reports, and historical archives. Crucial new information was then gathered through interviews with lawyers and executives directly involved with the episodes studied.
The study reveals a characteristic of patent pools that has gone unappreciated until now: they subtly but powerfully influence bargains that take place “poolside” — i.e., deals between patent holders and licensees that take place “in the shadow” of the pool. This spill-over effect can beneficially limit the power that theorists have assumed outsiders to have. This is an unappreciated benefit of cooperation. The theorists, as it turns out, have not used the wrong approach, but rather, have been missing some important parameters. To further aid regulators, this Article builds upon its qualitative findings by introducing a new quantitative technique for estimating the cost that a licensee either incurs or saves due to an outsider. Applying this technique to original financial and industry data gathered from research subjects, this Article shows that, counterintuitively, patent licensees are sometimes better-off where cooperation among licensors is partial, rather than complete. The inflection point lies where the royalty rate hike that a unified pool would need to charge to draw in an outsider is equal to the transaction costs that licensees would conserve by dealing with a single pool. This study’s revelations have provocative implications that reach beyond patent law. Contrary to conventional wisdom, slightly fragmented property markets may sometimes be preferable to “grand coalitions.” There may exist in any given market for complementary patent rights (or other complementary property rights), an optimal level of diffusion of ownership that resides between total diffusion and total concentration. Some cooperation may not only be better than none, but also better than more. Drawing upon this study, antitrust regulators who must evaluate patent pools can assemble a clearer and more complete understanding of their overall costs and benefits — a topic that Robert Merges and I recently wrote on in a related article. This Article is also helpful beyond patent law. The ethnographic methodology followed here reveals dynamics between outsiders and groups that theory alone has not captured. Scholars concerned with outsiders in other areas of law and policy can refine and build upon theory by applying a similar ethnographic approach
Race and Representation Revisited: The New Racial Gerrymandering Cases and Section 2 of the VRA
Get PDFThis article explores the Supreme Court\u27s new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars and activists care about descriptive representation, they should be wary of the racial gerrymandering cases
Legal Activism in the Face of Political Challenges: The Nigerian Case
Get PDFCountries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which continues to this day – albeit shakily. During this time, rights-lawyering has been an important access-to-justice vehicle for the poor and socially disadvantaged. Yet, as this study shows, this activity builds upon the brave efforts of lawyers who aided those unable to represent themselves during past moments of military rule. Despite being atomized and ad hoc, these pockets of legal advocacy nevertheless posed challenges to the different authoritarian regimes and, importantly, serve as the foundation for the rights-activism seen today
The Ethical Practice of Human-Centered Civil Justice Design
Get PDFOver the past two decades, legal professionals have increasingly engaged in a new form of professional activity: civil justice design. In the past, legal professionals handled cases and transactions for clients or served as neutrals, including mediators and arbitrators, who helped to resolve disputes between parties. Today, legal professionals increasingly play a principal design role in creating systems that resolve streams of conflicts, disputes, and grievances between parties. Lawyers regularly now create internal grievance procedures, procedures for companies to resolve disputes with customers, and court-annexed alternative dispute resolution systems. The emergence of this new role raises difficult questions about the ethics and responsibilities that attach to legal professionals who serve as civil justice designers. The primary ethical dilemma for these civil justice designers will be the tension between, on the one hand, maximizing a client\u27s interest and, on the other, providing the public with vibrant, fair, just, and legitimate institutions for resolving disputes. The Model Rules of Professional Conduct offer little guidance on how to resolve these tensions, and socialization into the legal profession may lead legal professionals to distance themselves from ethical responsibilities. These trends and conditions may result in systemic civil justice problems and a tragedy of the commons, which saps the longevity of our legal institutions. Yet there is a wider more virtuous moral principle that applies to all human relations: the principle of neighborly morality. In this article, I discuss the principle of neighborly morality and an analytical framework developed by professors Howard Gardner, Mihaly Csikszentmihalyi, and William Damon for understanding role ethics. I discuss the ethical responsibilities that apply to civil justice designers, including the criteria of excellence, engagement, and ethics, and a reflective practice of dispute system design, human-centered civil justice design, which assists civil justice designers in resolving this tension
Understanding Civil Procedure, 6th edition
No full textThis well-established treatise is premised on the assumption that the key to understanding the principles of civil procedure is to know why: why the principles were created and why they are invoked. The treatise is written to answer these questions as it lays out the basic principles of civil procedure. It also reflects the authors\u27 belief that students of civil procedure can understand and appreciate complex principles when they are clearly presented; teaching civil procedure does not require dumbing it down.
The authors use the Federal Rules of Civil Procedure as a model, but they also refer to different state rules and doctrines where appropriate in order to present a representative cross-section of state models. Although they discuss important civil procedure cases in the text, thus supporting the most widely used civil procedure casebooks using these same cases, they also provide useful references to secondary sources and illustrative cases for the reader who wants to explore further. Finally, they also treat thoroughly the most recent developments in personal jurisdiction and electronic discovery, with special attention to the latest rule changes affecting such discovery.
The resulting treatise is sophisticated, clear, and current, equally accessible and useful to students and practitioners.https://www.repository.law.indiana.edu/facbooks/1198/thumbnail.jp
Do Independent Directors Curb Financial Fraud? The Evidence and Proposals for Further Reform†
Get PDFIn this Article, we argue that the U.S. corporate governance rules put too much faith in the independent board members and insufficient emphasis on the shareholders to control and monitor top management. Given the agency problem between the board of directors and the shareholders, outside directors can be captured by management, thereby leading to inadequate checks on management. The evidence presented in this Article shows that outside board members do not exercise sufficient controls on management even when management has gone awry. To solve this agency problem, we propose increasing the power of the principals: make shareholder resolutions binding on management, require a one share, one vote rule to increase the voting rights of shareholders, give the shareholders the ability to directly nominate and/or actively vote against board members, and decrease shareholders’ barriers to exercising these rights by creating corporate platforms for beneficial owners to register and vote their shares
Reflections on the Future of Global Legal Studies
Get PDFThis Article proposes a set of theoretical ideas and practical innovations for the future of global legal studies in the three areas that make up the academic profession: research, teaching, and service. The future directions of global legal studies will involve building intellectual bridges that connect law with global politics, society, history, religion, and human behavior. Constructing these bridges preserves global legal studies as both an interdisciplinary enterprise and a movement for justice. This twin commitment to rigorous inquiry and social justice involves sustaining a welcoming community for graduate students and early career scholars, and prioritizing the experiences of those living and working in the global South. In the long run, investigating the complex social, political, and legal dynamics associated with globalization involves paying close attention to the blurred boundaries between law, politics, and power
Three Theses on the Current Crisis of International Liberalism
Get PDFThis essay advances three theses on the current crisis of international liberalism. First, it is a composite one, comprising interrelated crises of domestic political representation and of global governance affecting the international and supranational arrangements that were constructed in the post-war period. Second, the crisis is a specific development of neoliberal governance, which requires distinguishing international liberalism\u27s two historical variants: embedded liberalism and neoliberalism. The turn from the post-war regime of embedded liberalism to the neoliberalism of recent decades has had the effect of undoing the domestic social contracts that underlay post-war political stability even while failing to secure peace and prosperity internationally. Third, neoliberal governance operates through a distinct form of legality from the embedded liberalism of the post-war period. The turn to neoliberalism involves a shift from the inter-state orientation that characterized the first decades of international liberalism to a dialectic of globalization, in which newly empowered transnational activity across states generates pressure for supranational governance above them. This dialectic has the effect of undermining the international legal order on which liberalism has depended historically, which suggests that the present crisis is at root the product of an internal transformation rather than the result of competition with external enemies