3394 research outputs found
Sort by
Unenjoined Infringement and Compulsory Licensing
Get PDFThe United States has traditionally held a dim view of compulsory patent licensing, which occurs when a government mandates the licensing of privately held patents to a third party in order to advance a public goal. Yet following the U.S. Supreme Court’s 2006 decision in eBay v. MercExchange, federal courts have denied a substantial number of requests for permanent injunctions following a finding of patent infringement. Without an injunction, an infringing party may continue to practice the infringed patent subject, in most cases, to the payment of a courtapproved ongoing royalty. In the years following eBay, courts and scholars have debated whether unenjoined infringement and the payment of an ongoing royalty therewith constitutes a judicial compulsory license or something else.
In order to assess the manner in which courts view unenjoined infringement, we identified seventy-seven post-eBay cases in which patent infringement was found but a permanent injunction was denied. In each case we analyzed the language used by the court in establishing the right of the infringer to continue to operate under the infringed patent(s) and its obligation to compensate the patent holder. This language, as well as the surrounding transactional and litigation context, suggests that at least some federal district courts have, both tacitly and expressly, been granting compulsory patent licenses upon the denial of permanent injunctions, and that the Federal Circuit, in some cases, agrees with this characterization.
In order to remove any lingering uncertainty, we recommend that the Federal Circuit acknowledge that a district court that declines to enjoin the infringement of a valid and enforceable patent, and concurrently orders the infringer to compensate the patent holder for acts of future unenjoined infringement, has authorized a compulsory license of the patent. Such an acknowledgement would encourage courts to focus greater attention on the non-royalty aspects of such licenses, which are currently missing key terms such as license scope, field of use, duration and termination, and inform U.S. foreign policy regarding compulsory licensing by other countries
Achieving Equality without a Constitution: Lessons from Israel for Queer Family Law
Get PDFHow might the United States reconcile conflicts between equality and religious freedom in the realm of family law? To answer this question, this chapter considers recent developments in family (personal status) law in Israel. While Israel may at first blush appear to be the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values, this chapter argues that the Israeli experience has much to offer critical family scholars working to develop pluralistic legal approaches to family regulation. Israel is a country with a diverse population and unique political and legal context that has generated a rich (if imperfect) set of compromises among its religious, secular, and ethnic populations in the realm of family law. These solutions have emerged despite—or perhaps because of—Israel’s lack of a written constitution guaranteeing its citizens a basic right to equality. As such, Israel serves as a potentially generative case study to examine the possibility of developing pluralistic legal responses to family regulation in contexts without robust, universal, constitutional protections for women and LGBTQ citizens, a circumstance that the United States is increasingly approaching.
This chapter begins with an explanation of Israel’s personal status system and the Jewish and Sharī‘a laws on divorce. It then examines recent examples of self-reform undertaken by religious authorities and courts in Israel to address some of the injustices of religious divorce law. Specifically, the chapter examines the decision by some rabbinical courts to permit annulment when a husband refuses to grant a wife a divorce and a recent decision by Israel’s Sharī‘a court permitting the appointment of female qadis. The chapter concludes with a broader consideration of the implications of these developments for family law in the United States. In particular, this chapter suggests that the Israeli experience helps to illuminate conditions that may incentivize cooperation between religious and queer/feminist/secular communities around issues of family diversity absent strong constitutional protections for family equality. Drawing on the Israeli experience, it also explores how American reformers might facilitate greater legal pluralism to address queer families’ legal needs through private dispute resolution or other mechanisms that are less dependent on the state for their validity and enforcement than constitutional rights litigation
The Positive and Negative Purcell Principle
Get PDFThe Purcell Principle—the idea that courts should think twice about changing the rules before elections to avoid confusing voters—is sorely misunderstood. Despite deriving from a three-page opinion, the Purcell Principle has morphed into one of the Supreme Court’s most powerful election-law doctrines. By and large, the Court has interpreted the principle as a bright-line rule barring any judicial intervention close to elections and has overwhelmingly used the principle to uphold voting restrictions. That’s a problem because the Purcell Principle is not a bright-line rule. And it’s certainly not one that rubber stamps voting restrictions. To make matters worse, we know little about why the Court wields the principle in this way because it has been developed on the Court’s shadow docket. Lower courts are thus left with almost no guidance on when the Purcell Principle applies—when is a late change likely to cause confusion, how late is too late, and what considerations could outweigh the principle?
This Article adds structure to the Purcell Principle. Election-related court orders can be sorted into two categories: positive and negative. “Positive” orders add voting restrictions, while “negative” orders remove voting restrictions. Each category leads to different types of confusion. Positive orders produce underinclusive voter behavior—think bringing less identification to the polls than necessary—which risks disenfranchisement. Negative orders, on the other hand, lead to overinclusive voter behavior—think bringing more identification than necessary—which tends not to prevent people from voting. That matters because Purcell’s text and long-forgotten predecessor cases show that the operative inquiry in a Purcell case is whether a court’s order will chill voting. If a late rule change will not confuse voters in a way that stops them from voting, Purcell is no reason to halt that change. This Article argues that to safeguard the Purcell Principle’s integrity, courts ought to adopt a “presumption of no confusion”: presume negative orders do not confuse voters in a way that disenfranchises those voters unless evidence suggests otherwise. In doing so, this Article reimagines Purcell in the way most consistent with common sense, Purcell itself, and Purcell’s roots
Alternatives to Mainstream Alternative Dispute Resolution: Eliminating Forced Arbitration Agreements as a Condition of Employment
Get PDFToday, many employers require their employees, as a condition of employment, to agree to arbitrate employment-related legal claims rather than pursue them in court. While arbitration can be mutually beneficial, allowing parties to avoid the cost, time, publicity, and unpredictability associated with traditional litigation, mandatory arbitration often lacks the same procedural safeguards afforded by the justice system. Forced arbitration not only deprives employees of their right to sue their employer in a public court, but it also denies them any meaningful voluntary choice to surrender that right. This Article takes a close look at a variety of workplace grievance procedures with a particular focus on peer-centered processes. This Article then argues that preserving employee choice to pursue litigation or internal dispute resolution with peer advocacy remains the most effective way to promote fairness and justice for employees. Finally, this Article suggests several workable alternatives to mandatory arbitration that are cost-effective and advantageous to employees and employers alike
Judges in Lawyerless Courts
Get PDFThe typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.
Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power they wield – in dispensing justice for millions of unrepresented people each year. While today’s civil procedure scholarship focuses on documenting and analyzing growing judicial discretion in complex litigation, a much larger sphere of unexamined and largely unchecked judicial discretion has been hiding in plain sight in state civil trial courts.
This Article contributes the first-ever theoretically-driven and rigorous multijurisdictional study of judicial behavior in lawyerless courts to literatures in civil procedure, judicial behavior, and access to justice. It examines three state civil courts in jurisdictions that rank at the top, middle, and bottom of the Justice Index (a ranking of state and national access to justice efforts). Despite major jurisdictional differences and contrary to conventional wisdom, judges’ behavior is surprisingly homogenous in the data. Rather than offering simplification and accommodation to pro se litigants as reforms suggest, judges maintained courts’ complexity and exercised strict control over evidence presentation. The Article theorizes that this unexpected finding reflects a core structural reality – civil courts were not designed for unrepresented people – and that judicial behavior is likely shaped by at least three factors that result from civil justice system design, including ethical ambiguity and traditional assumptions about a judge’s role, docket pressure, and pre-hearing case development provided to only one party.
In theory, judicial assistance to pro se litigants is a low-cost, practical solution to the problem of lawyerless courts. In practice, the vision for judicial role reform may overpromise what individual judges can do and underestimate implementation challenges. This study suggests that the legal and structural scaffolding to support judicial assistance to pro se litigants is woefully insufficient if such assistance is a critical access to justice reform goal. The Article concludes the vision for judicial role reform will not be realized without formal legal requirements, consistent feedback about implementation, and a reduction in existing docket pressures
Protecting Tribal Public Health from Climate Change Impacts
Get PDFThe COVID-19 pandemic brought national attention to challenges that tribal communities have been facing for decades, such as limited health services and lack of water access. Although the end to the pandemic seems to be in sight, climate change will continue to threaten the public health and survival of tribal communities. Since time immemorial, Native Americans have recognized the sanctity of water. Water is life. However, climate change impacts are shifting the landscape across the country and many tribes lack the necessary infrastructure to protect their communities. For example, located in the Southwest, approximately 30-40 percent of homes on the Navajo Nation lack plumbing and drinking water access. These households must haul water long distances from wells and other community point sources. Due to climate change, the region is experiencing prolonged droughts in the region and groundwater supplies are drying up. As a result, residents must increasingly compete for limited water resources to fulfill all of the community’s needs—from agricultural to domestic.
The lack of infrastructure in Indian country is the direct result of federal policies. Stemming from treaty obligations, the federal government is responsible for providing health services to Native Americans. Recognizing the intrinsic connection between access to clean water and public health, the Indian Health Service (IHS) Sanitation Facilities Construction Program was established in 1959 to support drinking water and sanitation projects in tribal communities. However, IHS (including the sanitation program) has been historically underfunded and understaffed, hindering the federal agency’s ability to fulfill its mission to raise the physical, mental, social and spiritual health of Native Americans to the highest level. Climate change presents another challenge that must be addressed in efforts that seek to promote tribal public health.
With a special emphasis on water, this article identifies climate-change related health threats to tribal communities and analyzes the federal government’s treaty and trust responsibility to protect Native Americans from those threats. It also explores how the federal government can better support tribes in exercising self determination to the fullest to be drivers of their own future
Anti-Suit Injunctions and Jurisdictional Competition In Global FRAND Litigation: The Case For Judicial Restraint
Get PDFThe proliferation of international jurisdictional conflicts and competing “anti-suit injunctions” in litigation over the licensing of standards-essential patents has raised concerns among policy makers in the United States, Europe and China. This article suggests that national courts temporarily “stand down” from assessing global “fair, reasonable and nondiscriminatory” (FRAND) royalty rates while international bodies develop a more comprehensive, efficient and transparent methodology for resolving issues around FRAND licensing
The Exoskeleton of Environmental Law: Why the Breadth, Depth, and Longevity of Environmental Law Matters for Judicial Review
Get PDFEnvironmental law is pragmatic, inevitable, and intentional. In the aggregate, the numerous federal environmental statutes are not simply a patchwork of ad hoc responses or momentary political breakthroughs to isolated public health problems and resource concerns. Together, they are a group of repeated, legislatively-backed commitments to embrace selfrestraint for self-preservation.
Self-restraint and discipline are the essence of environmental law. Indeed, if one studies the patterns and repeated choices in environmental law’s many statutory texts, one can start to appreciate environmental law’s indispensable role in society: it serves as an enduring “exoskeleton,” a sort of protective armor created over time to protect ourselves from collective action problems that inevitably arise in a world of biophysical limits.
Appreciating the exoskeleton—that is, appreciating the broader statutory and historical context in which these laws exist—has implications for the interpretation and implementation of environmental statutes. It has implications for the weight that regulators and jurists ought to give enacted purpose statements when interpreting the laws, for reviewing agency decisions made in the face of scientific uncertainty, and for the robust review that ought to be given to agency inaction. Absent a corrected understanding of environmental law, one that aligns the fundamental purpose of the laws with its implementation, the full fervor of Congressional commitment to self-restraint will continue to be met with judicial microscoping, apathy, and sidestepping
Assessing Responses to the PTO’s 2021 Patent Eligibility Study
Get PDFIn July 2021, the US Patent and Trademark Office (PTO) issued a public request for comments regarding the impact of recent patent eligibility jurisprudence on US businesses and markets. The PTO received 145 responses to its request by the October 2021 deadline. In this paper, we analyze the responses by industry sector and respondent type, assessing whether responses were generally positive, neutral or negative toward US patent eligibility jurisprudence, and also identifying those responses that cited international competitiveness of US businesses (particularly with respect to China) in their reasoning
Getting Real, Getting Personal: Fictions and Realities of Property Across Borders (Review of Lionel Shriver, Property: Stories Between Two Novellas and Ayelet Waldman, Love & Treasure)
Get PDFFrom our earliest days, we are steeped in stories revolving around the acquisition, and loss, of property. For these reasons, Lionel Shriver’s collection of short fiction – Property: Stories between Two Novellas – and Ayelet Waldman’s novel Love & Treasure are particularly worthy of attention. Each of these works sheds new and interesting light on assumptions about property across national and cultural boundaries and raises questions about the place of property in shaping the human experience