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Far Out: The Extended Denial of Public Access to Psychedelic Therapeutics
Get PDFThe United States patent regime is designed to promote dissemination of information that undergirds a particular innovation. To incentivize disclosure, inventors are granted a time-limited right to exclude others from practicing the invention, thereby affording the inventor a period in which to commercialize and financially benefit from their inventive contribution. The disclosure provides information sufficient for one of skill in the relevant art to make and use the invention, and the public may freely do so upon the patent’s expiry. Global advancement of human medicine is fundamentally intertwined with the United States patent system; medical progress largely depends upon the exclusionary protections United States patents confer. Ordinarily, the expiry of patents covering therapeutic products and methods yields substantial price reduction, as new market participants seek to establish market share by undercutting the expired patent holder and others. The patent system also yields to the public not only access to new and improved medical technology but also a delayed, unencumbered freedom to make and use the invention upon the patent’s exhaustion. Recently, psychoactive chemical compounds have garnered renewed and international attention. Although many psychedelic substances have had a long history of human use, including within therapeutic contexts, the Controlled Substances Act and related legislation significantly stifled research directed toward developing these substances for medical use. This “artificial” impediment to therapeutic innovation effectively delayed public access to the fruits of earlier innovation
Keeping Up with the Joneses: Texas’ NIL Battle for Student-Athletes
Get PDFStarting in 2021, college athletes could earn financial compensation from their name, image, and likeness (“NIL”). With the change in laws, the National Collegiate Athletic Association (“NCAA”) created an interim regulation for states to follow. After the Supreme Court decision, some states’ trigger laws went into effect, some states made new NIL regulations, and some states continued to follow the regulation set out by the NCAA. With all these laws and no federal regulation, each state stands on different footing. In Texas, a restrictive NIL statute will affect its recruiting for years unless adjusted. This Comment suggests improvements to the Texas NIL law, such as allowing universities to assist student-athletes in finding potential NIL deals and creating and supplying resources and programs for collegiate athletes to obtain the highest return on NIL deals. Texas can also repeal its statute like states have done with similar NIL laws. This Comment will also discuss the potential Title IX impacts of suggested additions to the Texas NIL law
RICO\u27s Long Arm
Get PDFRICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish a domestic injury. But it declined to establish a bright line test—or really any test, leaving that to the lower courts to flesh out. The Court also declined to engage the question of whether RICO is an appropriate vehicle for enforcing all (or perhaps international) arbitral awards. And—more generally—domestic judgments. Those and many other questions remain for another day
Congress\u27s Untapped Authority to Certify U Visas
Get PDFA crucial path to legal status for immigrant victims of crimes is the U visa, which Congress established with strong bipartisan support to protect victims of particular crimes who are helpful to law enforcement. Because the U visa was intended to encourage reporting of crimes, the application requires a certification form to be completed by a federal, state, or local authority that is investigating or prosecuting the alleged offense. Arbitrary and inconsistent certification decisions by state and local authorities make it especially important to identify relevant federal authorities that can serve as certifying authorities for U visas. This Piece argues that congressional committees and subcommittees that engage in investigations qualify as certifying authorities under the statute and regulations. To date, these congressional committees have never certified a U visa. The Piece provides three examples of congressional investigations in which U visa certification would be warranted: investigations into medical abuses of detained women, the so-called “Zero Tolerance” family-separation policy, and the use of solitary confinement in immigration detention
In Defense of 2.0°C: The Value of Aspirational Environmental Goals
No full textAspirational goals, such as the Paris Agreement’s goals of avoiding a global temperature increase of 1.5°C or 2.0°C, can be found throughout environmental law. Such goals, though sometimes unrealistic, perform important functions. They may serve as asymptotic directives that guide implementing entities; yardsticks to measure and evaluate progress; expressions of social values; and expanders of policy space. As asymptotic directives, aspirational goals may push actors to achieve more than they otherwise might accomplish. Incorporated into treaties or statutes, they can serve as guideposts for implementing concrete substantive and procedural requirements. With the passage of time, aspirational goals function as yardsticks for measuring progress and identifying needed adjustments and course corrections. Aspirational goals also express messages about society’s priorities while seeking to shape its values. While aspirational standards can deflect alternative approaches, weaken support for policy objectives, or mislead the public, they ultimately can expand the range of possible outcomes and motivate actions that achieve significant progress towards lofty aspirations
Successive but Not Successful: Does the AEDPA Allow Federal Prisoners to Reassert Previously Presented Claims for Habeas Relief?
Get PDFThe Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unequivocally bars state prisoners from reasserting previously presented claims for habeas relief. Currently, the circuits are embroiled in a disagreement regarding whether the AEDPA also bars federal prisoners in the same way, and federal prisoners’ potentially viable claims for habeas relief hang in the balance. Prior to the Ninth Circuit’s decision in Jones v. United States, six circuits agreed that the AEDPA does bar federal prisoners’ previously asserted habeas claims, but the Sixth Circuit alone disagreed. Now, the Jones decision aligns the Ninth Circuit with the Sixth Circuit’s position. Through an in-depth analysis of Jones, this Note argues that Jones was rightly decided and that the AEDPA should not be construed to bar federal prisoners’ previously presented habeas claims. Since both textual analysis and sound public policy compel this conclusion, this Note proposes that the Supreme Court should adopt Jones’s holding to end this circuit split
Like, Comment, and Follow: How to Amend Copyright Law to Protect Black TikTokers
Get PDFThe Black community has long suffered through a cycle of trauma and pain, with history repeating itself throughout generations. From the civil rights movement to the Black Lives Matter movement, this cycle persists, showing up again in the experiences of Black TikTokers. Despite looking race-neutral on its face, copyright law’s lack of understanding of how Black art can manifest itself has become more obvious in the world of digital creativity. Stuck in a cycle of appropriation, Black TikTokers find themselves facing a familiar dilemma as their work is replicated without compensation or credit, echoing the historical struggles of Black musicians. This Article analyzes how copyright law fails to protect choreographic works, leaving Black TikTokers with no adequate legal solution. Looking through a critical IP lens, this Article proposes recommendations to better protect the creative works of Black TikTokers. Through these recommendations, this Paper aims to offer hope and tangible solutions to address the systemic challenges facing Black creators in this digital age
Climate Change and Implications for National Security and International Law in the Arctic
Get PDFClimate change threatens national security due to the potential it carries to destabilize fragile regions, damage military installations, and exacerbate existing tensions between countries. While these effects will be global, the Arctic region represents a microcosm of a future where climate change affects the strategic priorities of states and renders existing governing institutions inadequate. Moreover, climate change will challenge the collage of “soft” international law that governs the Arctic, administered primarily through the Arctic Council’s collaborative forum. While this system has been effective, the opening of the Far North to increased sea passage, commercial exploitation, and great powers’ interests necessitates a more robust integration of binding law and should spur the United States and the North Atlantic Treaty Organization (“NATO”) to better prepare for confrontations and contingencies that may arise as the ice recedes
False Start on NIL: Public and Private Law Should Treat College Athletes Like Any Other Student
Get PDFFor most of its regulatory existence, the National Collegiate Athletic Association (“NCAA”) has preached the importance of integrating intercollegiate athletics into the campus culture and educational mission, insisting that athletes be an integral part of the student body. A core element of this creed was the amateurism principle—college athletes must not be paid or professionalized. To preserve and enforce the amateurism principle, the NCAA and its divisions promulgated a vast and complex regulatory scheme that paradoxically resulted in segregating, rather than integrating, athletes into campus life. While nonathlete students enjoy increasing autonomy to pursue expressive and economic activity, athletes are subject to paternalistic rules that restrain their lives on and off campus and deny them a share in the wealth generated by their athletic talents. In a watershed moment in the summer of 2021, this began to change.
In June 2021, the Supreme Court in National Collegiate Athletic Association v. Alston affirmed that the NCAA had violated antitrust laws by capping the benefits that member institutions could offer to athletes when competing to recruit them to college teams. July 2021 brought the effective date of the first of many state laws preventing the NCAA from penalizing college athletes who monetize their name, image and likeness (“NIL”). In response, the NCAA amended its amateurism bylaws to permit all college athletes, regardless of where they attend school, to engage in NIL commercial activity consistent with state law and NCAA guidelines.
What followed was a cycle of NCAA rulemaking to preserve the amateurism principle alternating with state legislative rejoinders to preserve in-state athletic programs’ recruiting advantage. The resulting morass of private and public NIL rules customized to the college athlete led to calls to federalize those regimes. Proposals for federal legislation would establish national standards and a centralized regulatory authority for college athlete NIL exploitation. No such bills have gained traction in Congress.
This Article argues that both public and private law regimes singling out college athletes for customized regulation have it wrong. Instead, states, schools, and athletes would benefit from discarding specialized rules and reverting to laws of general application—in other words, let’s treat college athletes like any other student on campus. At least with respect to NIL, do away with the bifurcation of higher education into athletic and nonathletic fiefdoms and rent-seeking special treatment of the university’s relationship with athletes. Adopt a principle of nondiscrimination that deals with all college students the same way when they seek to benefit from and monetize their identities and publicity rights
Filling the Red State Federal Judicial Vacancies
Get PDFDistrict vacancies without nominees that plague red jurisdictions deserve emphasis in this Essay for several reasons. First, there are myriad district court jurists who trigger greater numbers of empty posts when they assume senior status, retire, or die, which triggers more issues. Legislators have created 677 active trial court positions, which dwarf the 179 active court of appeals judicial posts. The trial courts are tribunals of last resort for most cases; their numerous jurists are the only court members that many litigants encounter, and significantly more district court openings lack nominees. In contrast, appellate courts explicitly articulate considerable policy, include multiple states, and enunciate precedent, which strictly binds trial level judges in each circuit’s purview.
Vacancies’ substantial quantity and protracted character impose serious complications. Extensive openings increase pressure on all jurists, court staff, and litigants by prolonging resolution. Litigants who file civil suits particularly feel the pressure of judicial vacancies. The prevalence and duration of many red state trial court vacancies without nominees essentially inflict adverse effects that may prevent judges from satisfying their duties to ensure expeditious, inexpensive, and equitable disposition under Federal Rule of Civil Procedure 1. Accordingly, that issue requires scrutiny, which this Essay undertakes