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Cryptic Patent Reform Through the Inflation Reduction Act
Get PDFIf a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (IRA) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to calls for reform. The IRA may just succeed in changing that pattern, at least to some extent, by imposing drug pricing reforms that alter the incentives for evergreening in the first place. In this Article, we lay out the case that the IRA contains implicit reforms to the pharmaceutical patent system. Its details are not straightforward, nor is its implementation, but its effects could nevertheless be major. Drug patent reform, a longtime priority for activists and scholars, may in fact have already happened
Fact-Finding Without Rules: Habermas\u27s Communicative Rationality as a Framework for Judicial Assessments of Digital Open-Source Information
Get PDFJürgen Habermas’s theory of “communicative rationality” (also known as “communicative action”) provides a promising conceptual apparatus through which to justify and validate the International Criminal Court’s consideration of the emerging phenomenon of digital open-source information. Because of its process-based and inclusive qualities, Habermas’s communicative rationality is particularly apposite for the dynamic nature of digital open-source information and the heterogenous range of actors and institutions which have relevant experiences and skills to contribute to the generation of norms and determinations regarding its role before the Court. This is important, as the International Criminal Court’s procedural framework is largely silent on digital material, despite the risks of such materials being misinterpreted or misused as a vehicle for disinformation. In the absence of prescriptive regulatory responses, this article argues that Jürgen Habermas’s communicative rationality provides a justifiable framework for the court’s judicial deliberations regarding digital information. Importantly, Habermas emphasizes forming a broad epistemic community to draw specialists into the deliberative process. As the truth-seeking evidentiary function increasingly moves outside of the courtroom, Habermas’s communicative rationality constitutes an inclusive approach capable of inculcating specialized knowledge into judicial deliberations. In this way, communicative rationality can provide a powerful conceptual justification for the judicial exercise of power regarding the emerging phenomenon of digital open-source information
Wrongs to Us
Get PDFA huge number of tort suits in the United States are captioned Plaintiff & Spouse v. Defendant. Why? The answer is at once completely obvious and deeply puzzling. The plaintiff’s spouse is part of the case because, in almost every U.S. state, she has a claim against the defendant too—not for battery or negligence, as her spouse might, but for the loss of her spouse’s “consortium.” And yet, it’s not at all clear why a spouse should have a tort claim of this kind. A plaintiff who sues in tort, Judge Cardozo once explained, must always identify “ ‘a wrong’ to herself; i.e., a violation of her own right.” By this standard, however, a spouse’s consortium claim seems strange. The defendant violated her injured spouse’s rights, perhaps, but is it right to say the defendant violated hers too? At one point, tort law took the view that a husband had property rights in his wife, so that a wrong to his wife was a wrong to him too. That can’t be the right answer today, however, and it’s not clear whether there’s a more egalitarian rights-based answer to give. For that reason, rights-based theories of tort law tend to say that consortium claims have no proper place in a law of private wrongs, and critics of those theories can cite consortium claims as evidence that tort isn’t (all) about rights in the first place. In this Article, I suggest that both conclusions miss the mark. Consortium claims may have a natural place in a rights-based picture of tort law, so long as we have the right picture of rights (and rightsholders) in view. Partners in marriage-like relationships act together to construct a shared life, and that puts them in a position to hold joint claims against certain interferences with that life. Consortium suits make more sense, I propose, if we see them as a response to the violation of these joint claims—as a means to redress what partners in marriage-like relationships would rightly regard as “wrongs to us.
How Not to Lie: A Don\u27t-Do-It-Yourself Guide for Litigators
No full textOver the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants were indeed on fire
Pricing Corporate Governance
No full textScholars and practitioners have long theorized that by penalizing firms with unattractive governance features, the stock market incentivizes firms to adopt the optimal governance structure at their initial public offerings (IPOs). This theory, however, does not seem to match with practice. Not only do many IPO firms offer putatively suboptimal governance arrangements, such as staggered boards and dual-class structures, but these arrangements have been gaining popularity among IPO firms. This Article argues that the IPO market is unlikely to provide the necessary discipline to incentivize companies to adopt the optimal governance package. In particular, when the optimal governance package differs across firms and there is an informational gap between the firms and the outside investors, the IPO market cannot accurately price governance provisions, and many firms will adopt a suboptimal governance structure. After presenting the baseline thesis, this Article examines various private ordering and regulatory mechanisms that could mitigate this market failure, such as verification using a costly gatekeeper, reliance on internal capital markets, deliberate underpricing, and post-IPO liability. This Article also presents both positive and normative implications, such as empirical predictions as to when we may expect to observe better pricing of governance regimes and the proposal over sunset provisions on dual-class stock structure that convert dual-class to single-class stock after the IPO
Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People, Civil Rights Litigation
No full textTens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and prisons to avoid discrimination, promote integration, and ensure effective communication. This requires adequate resources and preparation, joined by a shift in policy, practice, and values: to meet their antidiscrimination obligations, jails and prisons must offer choice and individuation well beyond what is typical in carceral environments. This Article offers a starting point for such efforts, summarizing the law and offering detailed policy recommendations for meeting its requirements and improving practices. The recommendations derive from litigation documents—including court opinions and settlement agreements—as well as workshops and interviews with advocates and experts. They are intended to fill the gap between the overarching requirements of federal antidiscrimination law and the granular policies and protocols—currently absent from most jails and prisons— needed to meaningfully implement these requirements
Unprecedented Precedent and Original Originalism: How the Supreme Court’s Decision in Dobbs Threatens Privacy and Free Speech Rights
No full textThe U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.
This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two approaches to constitutional adjudication taken by the Court in Dobbs could unsettle a number of important privacy and free speech principles that we have come to think of as established. In short, I maintain that in Dobbs, the Court took an unprecedented approach to precedent and an unhappily original approach to originalism
The Value of Understandable Consumer Insurance Contracts
No full textInsurance consumers, the intermediaries who serve them, and the regulators who protect them all would benefit from understandable consumer insurance contracts. This article outlines the benefits of understandable insurance contracts, identifies the regulatory tools that are or can be used to ensure such comprehensibility, and reviews the existing literature about how well consumers comprehend their insurance policies within the context of personal lines insurance in the U.S. The article concludes by proposing an empirical research strategy to study consumers’ understanding of the terms of homeowners insurance policies and, even when they have not read their policies, their expectations about coverage
Feedback Loops: E-D-I-T (Continued)
No full textIn the Feedback Loops column back in March, we introduced the E-D-I-T framework: Find something to Eliminate Find something to Decrease Find something to Increase Find something to Try
This new column will discuss each category more in depth