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Standing, Nominal Damages, and Nominal Damages Workarounds in Intellectual Property Law After TransUnion
Get PDFIn June 2021, the United States Supreme Court held, in TransUnion LLC v. Ramirez, that plaintiffs lack standing to assert claims for statutory damages under the Fair Credit Reporting Act unless they can demonstrate “concrete harm” arising from those violations. Although TransUnion was not a case involving intellectual property (“IP”) rights, if the rationale of the decision is that Congress cannot authorize federal courts to entertain claims for statutory damages unless the plaintiff shows that it has suffered actual harm, some common monetary awards for the infringement of IP rights — specifically, statutory damages, reasonable royalties, and (in design patent law) awards of the infringer’s total profit, all of which are intended to reduce the risk that IP owners otherwise would be left with nothing more than nominal damages — would appear to be in jeopardy. This Article argues, nonetheless, that these three remedies, which the Article refers to as nominal damages “workarounds,” rest on a sufficient footing to overcome the sort of jurisdictional objection at issue in TransUnion, for two reasons. The first is that, according to TransUnion itself, “history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider”; and history and tradition show that for over a hundred years courts have presumed that violations of IP rights cause harm, sufficient to sustain (at least) an award of nominal damages (or in the case of copyright, statutory penalties). Second, because the value of IP rights (unlike the rights at issue in TransUnion) often lies in the owner’s ability to license those rights to others who can exploit them more efficiently, from a functional perspective it often makes sense to conceive of infringement as causing harm when it deprives the owner of an opportunity to license.
The Article further argues three additional points: first, that reasonable royalties are generally superior to both statutory damages and total profit awards as a nominal damages workaround; second, that courts retain authority to award nominal damages, as opposed to awarding zero damages or dismissing a claim altogether, when IP owners fail to satisfy all of the necessary conditions to qualify for one of the workarounds; and third, that courts should award only nominal damages in two recurring situations, namely when the evidence shows that the IP in suit provided no advantage over the next-best available non-infringing alternative, or that the defendant manufactured or acquired the IP unlawfully but then failed to use it. The Article rejects the view, however, expressed by some scholars, that courts should award only nominal damages in patent infringement actions in cases brought by patent assertion entities
The Court’s One-Way Street: L.S. ex rel. Hernandez v. Peterson’s Missed Opportunity to Expand Children’s Constitutional Rights
Get PDFThe Importance of Exit via Acquisition to Venture Capital, Entrepreneurship, and Innovation
Get PDFAntitrust regulators around the world, including in the UK, have proposed changes to merger review policies that impact how acquisitions of start-ups would be investigated and evaluated. Such changes will likely lead to heightened scrutiny—and increased costs and longer reviews—for many acquisitions, including both horizontal and non-horizontal mergers. In evaluating the merits of such changes, it is critical to take into account the important role that exit via acquisition plays in providing incentives for venture capital (VC) investment and entrepreneurship. This article seeks to provide context for evaluating the effects of such proposed changes. First, it documents the links among VC, entrepreneurship, and innovation, and how exit via acquisition can foster dynamic innovation, one of the stated goals of the CMA. Second, it identifies additional consumer benefits derived from acquisitions of small companies by larger companies. Third, it describes VC investment in the UK, including the favourable, yet fragile, position that the UK holds as a VC hub for continental Europe. Finally, it documents the recent increased diversity in VC investment and entrepreneurship in the UK, which could be curbed by the proposed changes
A Behaviorial Economics Analysis of Will Making Preferences: When to Begin and Who Should Have the Most Input?
Get PDFBanking Deserts, Structural Racism, and Merger Law
Get PDFRoughly seventy million Americans cannot access a bank account or traditional financial services. Many of these individuals live in a “banking desert”—a town or community that has neither an independent bank nor a branch office of a larger bank. The United States has over 1,100 banking deserts, with another 1,000 communities at risk of losing their last bank. Banking deserts are generally in low- and moderate-income neighborhoods, which are disproportionately communities of color. Residents of banking deserts lack access to credit, including mortgages and small business loans, as well as savings accounts and other basic financial services. Consolidation in the banking industry is increasing the number of banking deserts as merged banks close their local branches. After banks depart a community, fringe banking (such as payday lenders) and fintech (such as mobile banking) cannot appropriately satisfy the financial needs of people living in a banking desert. Understanding the phenomenon of banking deserts requires appreciating four separate strands of sociolegal history: bank decision-making, financial racism, bank regulation, and antitrust law. This Article tells each of these stories in turn and weaves these strands together. It then explains how proper interpretation and application of antitrust law could help mitigate the problem of banking deserts. Many banking deserts were created or precipitated by government policies and banking practices that intentionally excluded Black families from the banking system. New Deal agencies like the Federal Housing Administration adopted strict redlining policies that blocked government-backed mortgages for Black families and often required developers to have “whites-only” housing tracts. These policies created Black neighborhoods without banks, locking minority families into cycles of poverty. More recently, banking deregulation and weak merger enforcement have fueled branch closures, especially in poor and minority neighborhoods. Banking deserts should be treated as an antitrust issue be- cause branch closures reduce output and increase the price of credit, which are quintessential antitrust injuries. Despite these harms, the Department of Justice (DOJ) Antitrust Division has largely abdicated its role in bank merger review, generally deferring to the federal banking agencies (e.g., the Federal Reserve Board). But the banking agencies do not apply antitrust principles properly because they define the relevant geographic market too broadly. When reviewing proposed bank mergers, federal banking agencies focus exclusively on state and regional banking markets, paying insufficient attention to local markets and how post-merger branch closures can create banking deserts. They fail to appreciate how banking practices in the aftermath of branch closures can replicate the intentional discrimination of the redlining era because banks dramatically reduce lending in neighborhoods where they no longer maintain a physical branch office. Just as it was immoral for government actors to redline minority communities beginning in the 1930s, it is inappropriate for government officials today to define banking markets in ways that ignore the continuing costs of historic redlining. This Article explains the advantages of resuscitating the DOJ’s role in bank merger review. It advocates that the DOJ exercise its leverage during the merger review process to negotiate merger conditions designed to preclude branch closures and to restore financial services to banking deserts. Applying antitrust oversight, the DOJ can mitigate some of the anticompetitive effects and racialized impacts of banking deserts
Physicians Spreading Medical Misinformation: The Uneasy Case for Regulation
Get PDFPhysicians have played a surprisingly prominent role in the current “infodemic” of false and misleading medical claims. Yet, state medical boards, the governmental agencies responsible for professional licensure and oversight, have sanctioned remarkably few physicians. Pushing back against the widespread criticism of medical boards for insufficient action, this Article questions the overall suitability of licensure regulation to police medical misinformation. First, uncertainty exists about medical boards’ jurisdiction and legal authority. Many misinformation claims have involved physicians communicating publicly, not while treating patients. Given the primarily patient-centered legal and ethical frameworks governing the practice of medicine, serious challenges arise in making legally cognizable the wrongs arising from physicians, acting outside a doctor-patient relationship, spreading medical falsehoods to the community. First Amendment barriers to restricting physician speech add further complications. To date, most scholarly commentary has focused on whether medical boards can navigate around constitutional concerns. The implicit assumption of much of this work is that, but for the First Amendment, the case for medical board intervention remains very strong. Taking a different approach, this Article delves deeper into additional limitations that, regardless of the First Amendment, cast considerable doubt on the prospects for optimal licensure regulation. Medical boards remain poorly designed for combatting physician-spread misinformation, suffering from professional bias in their composition, starved resources, time-consuming and reactive procedures, opacity, and insufficient institutional resilience and independence. Moreover, because of the difficulty in defining medical misinformation with precision, wide discretion is inevitably left to medical boards in targeting certain claims and particular physicians. This introduces serious risks that medical boards will inevitably overreach and conflate unorthodox, yet potentially innovative medical claims, with misinformation or exercise disciplinary powers for anti-competitive reasons. Further advancing the literature, this Article also synthesizes data on disciplinary proceedings in the three largest states—California, Texas, and Florida—to provide a more comprehensive accounting of how medical boards are responding to physicians spreading COVID-19 misinformation
The Old Hand Problem
Get PDFSenior status is a special form of retirement for federal judges. When a judge takes senior status, they open a vacancy on their court, yet continue to hear and decide cases. Most active judges today eventually go senior. Yet many do not do so the very moment they become eligible. So why do judges take senior status when they do? The scholarly consensus emphasizes non-partisan reasons, such as rising caseloads or financial incentives. This Article, though, presents the first attempt to comprehensively analyze the timing behind every senior status decision since 1919. My dataset offers a startling rebuttal to the existing literature, showing that today—more than ever before—the decision to go senior is politically strategic, giving open seats to Presidents from the same political party. For much of history, going senior was not all that partisan. As recently as the Clinton Administration, more than half of the judges who took senior status had been appointed by a Republican President. But that has changed. Under George W. Bush, over seventy percent of federal judges seeking senior status were appointed by a Republican President. During the Trump Administration, this number increased to over eighty percent. By comparison, fifty-seven percent of judges going senior under Barack Obama were appointed by a Democrat, and sixty-five percent of judges going senior under Joseph Biden were appointed by a Democrat. As reflected in these percentages, politically strategic behavior is most pronounced when a Republican is in the White House; one side, it seems, is playing the game better than the other. I call this sort of politically strategic behavior the “old hand” problem. Senior judges, while technically retired, continue to control law and policy for this generation and future generations—thus casting doubt on the legitimacy of judicial decisions for three distinct reasons. When a circuit judge goes senior, they create an opportunity to fill a vacant seat with an ideologically compatible replacement, all while staying on to participate in panel decisions. That is court-packing. When a district judge goes senior, they get to choose their cases and pick their magistrate judge colleagues—instances of court-picking. And when chief judges invite senior judges to visit their courts to advance political goals, that allows for court-stacking. Together, court-packing, court-picking, and court-stacking are already eroding judicial legitimacy. I conclude by discussing some ways to address the old hand problem
Keynote Address: Leaving Langdell Behind: Reimagining Legal Education for a New Era
Get PDF“[T]he time seems right to ask ourselves, legal educators and bar examiners, who have different but related roles in the law student to lawyer continuum: how can we best work both independently and in collaboration to ensure that tomorrow’s lawyers are ready to take on the considerable challenges that we face as a society?”
Video of lecture available online at https://www.youtube.com/watch?v=nLN5QsR5rq