3394 research outputs found
Sort by
Before Loving: The Lost Origins of the Right to Marry
Get PDFFor almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: conjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake to lose its exclusive claims to licit sex and legitimate procreation, personal autonomy in those very domains gained independent constitutional protection. Drained of its conjugal essence, today’s constitutional right to marry is thus an anachronism, the vestige of a bygone consensus about what, if anything, “marriage” fundamentally is
Regulatory Challenges for Treating Failure to Disclose FCOI as Research Misconduct in Public Health Research
Get PDFIt is unlikely that a court would find that current HHS regulations provide legal authority for PHS funding-agencies to address “serious noncompliance” with FCOI disclosure requirements as research misconduct. With one exception—the culpability standard for research misconduct—the administrative law governing bias and integrity in PHS-funded research does not support treating even the most serious cases of failure to disclose FCOI in itself as research misconduct in violation of PHS regulations. Indeed, there are at least four features of that law which would support a claim that an HHS action to treat FCOI nondisclosure as research misconduct was “arbitrary and capricious.” First, “serious noncompliance” with institutional FCOI disclosure requirements does not fall within the definition of “research misconduct” under 42 C.F.R. § 93.103. Second, one of the regulatory standards for a finding of research misconduct rests on a comparison with the “accepted practices” within the “relevant research community,” and there is currently no discernable consensus on FCOI disclosure requirements among major research institutions sufficient to establish clear parameters of “accepted practices.” Third, the intent behind the 2004– 2005 rulemaking process that revised research misconduct policies across agencies of the federal government, including NIH, was to create a uniform federal policy on research misconduct—a historical legacy that may throw up legal constraints to any agency’s unilateral effort to reshape the contours of administrative actions for research misconduct. Fourth, the regulatory structure within Title 42 of the C.F.R. that was created by the 2004–2005 rulemaking process supports the conclusion that HHS rulemakers saw FCOI nondisclosure as distinct from research misconduct
Science Fiction and the Law: A New Wigmorian Bibliography
Get PDFIn 1908, Dean John Henry Wigmore compiled a list of novels that no lawyer could “afford to ignore”. Wigmore’s list, taken up by Professor Richard Weisberg in the 1970s, catalogs one hundred novels, stories and dramatic works from Antigone to The Merchant of Venice to Native Son, each of which portrays or offers insight into the legal system or the practice of law. Weisberg’s updated list also includes a compilation of critical studies in the then-emerging law and literature movement. This article undertakes a similar bibliographic exercise with respect to law and the literature of science fiction. While science fiction, as a literary genre, has its detractors, it cannot be denied that science fiction stories – whether in books, short stories, films or television shows – reach a vast audience and, for better or worse, influence popular perceptions and understanding of science and technology issues. Likewise, science fiction narratives that portray legal regimes directed at new and unsolved problems (prescribing relations between alien races, governing sentient machines, regulating human genetic modification) can help judges, lawyers and policy makers to consider the hypothetical effects of such regulations in the real world. Accordingly, this article offers a list of fifty science fiction works that address legal issues, classified according to doctrinal themes, as well as a compilation of academic literature addressing issues of law in science fiction. It is hoped that the materials compiled here will serve as a useful resource for legal practitioners, policy makers and educators as they grapple with ever increasing legal challenges brought about by the rapid evolution of science and technology
Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond
Get PDFThe decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision of the last 100 years, as it affirmed the reservation boundaries of the Muscogee (Creek) Reservation – an area long considered by many to be under Oklahoma’s jurisdiction. Yet, following release of the Court’s decision, the outcry from the oil and gas industry was almost instantaneous, as roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision. Additionally, the territory affected by the Court’s decision also includes pipelines crucial to the successful operation of the nationwide Keystone XL pipeline. While the Court was clear that its holding was limited to criminal jurisdiction under the Major Crimes Act, the decision nonetheless has broader implications for Indian country, including natural resource development and regulatory framework. Because the oil and gas industry will now have to work with tribes and the federal government instead of favorable state officials, industry officials decry the Court’s decision as being detrimental to the industry. But what exactly will be the impact of the Court’s McGirt decision on the oil and gas industry, and the natural resources development in Indian country more broadly? While the full impacts of the Court’s decision are only beginning to unfold, this Article seeks to answer the questions left hanging by the Court’s decision as they relate to traditional energy development. This Article explores the future impacts of the McGirt decision on traditional energy development. The second Part of the article summarizes the legal background that governs oil and gas development in Indian country. Part three provides an in-depth analysis of McGirt—first, describing its predecessor, Sharp v. Murphy, followed by an explanation of McGirt and its holding. The article concludes by discussing future implications of McGirt, including what it means for oil and gas development going forward as well as collateral effects. The article constitutes an important scholarly contribution as it answers important questions left open after the Court’s decision and explains how the Court’s decision has broader implications for Indian country and natural resource development generally
Pledging Intellectual Property for COVID-19
Get PDFCOVID-19 differs from other recent public health crises with respect to its sudden onset, its rapid spread, the lack of any known vaccine or cure and resulting shortages of critical medical equipment. The convergence of these factors has prompted both governments and IPR holders around the world to seek ways to increase the availability of IPR necessary to combat the pandemic. Governmental compulsory licensing, IPR pools and voluntary IPR pledges have all been used in the past, though in situations that differ in important respects from the COVID-19 pandemic. Each is designed to result, to a greater or lesser degree, in a publicly-accessible “commons” of rights and technologies that are broadly available for use to support an important public health goals. Here, we compare and contrast these differing approaches to IPR commons formation and assess their suitability to address the COVID-19 crisis
The Incomplete Rule of Completeness: Taking a Stand on Federal Rule of Evidence 106
Get PDFThe common law Rule of Completeness served an important role in Anglo-American jurisprudence for centuries. Historically, it was a rule guided by principles of fundamental fairness and was designed to prevent parties from introducing incomplete and misleading statements at trial.What was once a simple rule has been muddled by Federal Rule of Evidence 106. The common law rule language was lost when Rule 106 was drafted, and there is no agreement as to what portion of the common law survived and what was left behind. Particularly problematic are the issues of whether Rule 106 applies to oral as well as written statements, and whether Rule 106 allows a court to admit otherwise inadmissible evidence. The federal and state courts are split on these issues, and the United States Supreme Court has failed to provide guidance. This Article critically examines current Rule of Completeness jurisprudence. It compares and contrasts the common law with Rule 106, and then dives deeply into the disparate interpretations of the Rule. By using two recent Utah Supreme Court decisions as case studies, the Article highlights the confusion caused by the incomplete understanding of the Rule and demonstrates the unfairness that occurs when the Rule is read too narrowly. Finally, it recommends that the Federal Rules of Evidence Advisory Committee fill the leadership void in this area of Evidence law and draft an expanded Federal Rule of Evidence 106
Sexual Violence and Future Harm: Lessons from Asylum Law
Get PDFSexual violence victims face unique and enduring safety risks following an assault. The legal system’s gradual shift from solely punishing offenders for past acts to protecting survivors from future harm reflects a recognition of this fact. But so-called “sexual assault protection order” statutes impose onerous “future harm” requirements – including proof by clear and convincing evidence that another sexual assault is imminent – that belies the realities of ongoing injury for victims and creates barriers to protection similar to the criminal justice approach to rape.
This Article suggests a different approach, one justified by a novel analogy to the refugee protection paradigm. Asylum law prospectively protects applicants upon a showing that they have a “well-founded fear” of future persecution. Only the most severe forms of discrimination qualify as “persecution.” But applicants who can prove they have suffered a single act of past persecution enjoy a rebuttable presumption of future harm. Both courts and Congress have recognized the propriety of this presumption, given the “atrocity” of persecution and the permanent scarring it causes to “the mind of a refugee.” The same logic applies to sexual violence, long considered “the most heinous crime” short of murder. By transplanting the evidentiary framework from asylum law to sexual civil protection, this Article does two things unique in scholarly literature: 1) provides the first comprehensive consideration and overhaul of the sexual violence protection order regime, and 2) reconceptualizes asylum as a form of prospective civil protection
A Path to Data-Driven Health Care Enforcement
Get PDFThe Department of Justice (“DOJ”) has a long-stated goal of encouraging companies to engage in what the author refers to as “compliant behaviors”—maintenance of an effective pre-existing compliance program, post-enforcement adoption of an effective compliance program, cooperation with a government investigation, and self-disclosure of misconduct. Substantial DOJ guidance over the past two decades, along with the concrete incentive structure of the United States Sentencing Guidelines, have increasingly made clear to organizations when and how such behaviors will be rewarded in criminal matters. Recently, DOJ has made transparency and clarity regarding the benefit of compliant behaviors a priority in calculating and announcing criminal resolutions. With respect to civil False Claims Act (“FCA”) settlements, however, meaningful formal DOJ guidance on the effect of compliant behavior only arrived in 2019. More significantly, DOJ’s treatment of compliant behavior in civil cases, in contrast to that in the case of criminal resolutions, has appeared inconsistent and certainly opaque. This lack of clear implementation philosophy is particularly problematic in the area of health care, an industry for which the FCA is the primary tool for government action in response to misconduct. While much has been written on the systemic efficiencies—or lack thereof—that DOJ’s enforcement practices bring to the activities of regulated industries, this is the first article to use data to ask whether DOJ has a governing practice concerning civil settlements, or whether instead, its settlement practices fail to match its stated principles.
For decades, even as resources devoted to health care compliance by market participants have skyrocketed and DOJ has pressed corporate entities to engage in compliant behaviors, the health care industry and the defense bar have expressed skepticism regarding the actual payoff they might realize by engaging in those behaviors. DOJ’s response has been a series of public statements amounting to, “trust us, they matter.” Until now, the health care industry has been without any mechanism to test those assurances.
In response to changes in the tax code, however, DOJ made adjustments in 2018 to its practice of disclosing information regarding FCA settlements—changes that have shaken loose data that provides an opportunity to test DOJ’s claims of rewarding compliant behaviors in civil cases. The author is the first and thus far the only person to have identified and analyzed this newly available data. Examination of this data demonstrates that wide-ranging, structural changes are necessary. The data raises substantial questions about: the quantum of credit given for cooperation; conduct DOJ values in resolving FCA cases; and the degree of consistency in cases settled by U.S. Attorney’s Offices across the country. For example, analysis of the data reveals inconsistent benefits for cooperation. Cases where defendants self-disclosed misconduct or cooperated were often not treated more leniently than cases where defendants did not self-disclose or cooperate, and a review of more than 100 settlements did not find a single instance in which DOJ purported to give an entity a reduction based on its pre-existing compliance program. At the same time, DOJ appears to be greatly rewarding defendants for agreeing to settle—highlighting concerns both with regard to whether DOJ is achieving adequate deterrence and with regard to whether the FCA’s potential penalties are coercing settlements. And the data appears to show significant variation in settlement positions depending on the identity of enforcing DOJ component, with cases handled by DOJ’s Civil Division in Washington, D.C. treated more leniently than cases handled solely by U.S. Attorney’s Offices across the country.
With the data now public—and at a moment in time when DOJ is emphasizing transparency and clarity in rewarding compliant behaviors in the resolution of criminal cases—DOJ’s corporate health care enforcement regime is at a crossroads. Without change in this area, DOJ risks undercutting its efforts at encouraging compliant behaviors in one of DOJ’s primary enforcement areas. No longer left in the dark about the impact of compliant behaviors in calculating FCA resolutions, the health care industry may be less likely to continue investing in compliance programs at the same rate, to cooperate with government investigations, and especially to self-disclose misconduct to the government. The analysis reveals that a detailed structure of DOJ’s calculations in FCA settlements, with calculations transparent in each FCA resolution, is needed to accomplish DOJ’s goal of encouraging cooperation and investment in compliance programs, as well as to provide an assurance that like cases are treated alike
It’s Anti-Suit Injunctions All The Way Down – The Strange New Realities of International Litigation Over Standards-Essential Patents
Get PDFToday’s markets for technology products — from smartphones to home appliances to automobiles — are inherently global. This is especially true of products that embody technical standards — protocols like 5G, Wi-Fi, Bluetooth and USB that are covered by hundreds, thousands, or tens of thousands of patents (so-called “standards-essential patents” or “SEPs”). Given the global scope and size of these markets, it is not surprising that patent litigation over standardized products is often conducted on a global scale. This article looks at an increasingly important aspect of these global standards wars: the ability of a court in one jurisdiction to prevent a party from pursuing litigation in another jurisdiction using a procedural mechanism called the anti-suit injunction (ASI). To complicate matters further, a litigant may also petition a court in one jurisdiction to prevent a party from seeking an ASI in another jurisdiction — the so-called anti-anti-suit injunction (AASI). And, curiouser still, litigants have recently re-invigorated the anti-anti-anti-suit injunction (AAASI), a procedural move that seeks to prevent a litigant from obtaining an AASI to block another litigant from requesting an ASI. If there is no theoretical limit to the procedural machinations to which parties can go in such disputes, it may, indeed, be injunctions “all the way down”
First Sale and Exhaustion
Get PDFThis chapter in the forthcoming case book Intellectual Property Licensing and Transactions: Theory and Practice addresses issues of first sale and exhaustion for licensing transactions involving patents, copyrights and trademarks. Among the issues considered are licensing versus sale of software, patent exhaustion, post-sale restrictions, international exhaustion and gray market imports