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Short Strikes
No full textThe one-day strike, once a surprising, even exceptional, tactic has become a social phenomenon. Workers now walkout in protest—and quickly return—all the time. So do high school students. The New York Times has published a “how-to” guide. Yet, while headlines tout how more workers struck in 2018 than at any point in the last three decades, because “short strikes” are also generally small, the actions are not viewed as significant enough to be included in the total. Activists clearly disagree. This essay argues that time-limited walkouts have reached an inflection point and considers why. Some answers are obvious. Limiting a strike’s duration maximizes labor law protections while nevertheless building attention and organizing capacities in ways that other forms of collective action may not. Those factors, though, were also true thirty years ago, so there must be more to the story. In fact, recent actions at McDonald’s, Google, and Uber suggest that while labor law may account for short strikes’ existence, employment law may better explain their surge. Public messaging, too, is a key motivator, but how strikers use bursts of specifically on-line attention to craft narratives and damage reputations says more about the tactic’s effectiveness. And while solidarity cultures are both a cause and a consequence of walkouts, Millennial culture may shape the future of short strikes just as much
Aesthetic Functionality at a Crossroads: What a Troublesome Doctrine Can Learn from Its Past
Get PDFWith the rise of branding and marketing, firms started using trade dress such as product features or packages to identify themselves. Some firms claim an exclusive trademark right on their trade dress. However, granting a trademark right to some trade dresses might hinder competition. For example, if one firm claims trademark on the heart-shaped candy box, it will prevent others from using the same package to compete in the Valentine’s Day sweets market. So U.S. courts developed a doctrine called aesthetic functionality to avoid the competition hindrance consequence. Aesthetic functionality refers to the situation where a trade dress has the aesthetic value and consumers buy the product largely due to that value. Once a court decides a trade dress, such as the heart-shaped box, is aesthetically functional, the trade dress cannot be a trademark owned by any one firm, and every firm can use it in the market. U.S. courts use aesthetic functionality as a legal ground to reject trademark protection of a trade dress when granting such protection would unfairly disadvantage competitor
Expert Discovery Protections: Comparing District Courts with the PTAB
Get PDFExpert witness testimony can be critical in patent litigation in all forums. In Patent Trial and Appeal Board (“PTAB”) proceedings, particularly inter partes review (“IPR”) and post-grant review (“PGR”), expert testimony through declarations and depositions plays a central role in both challenging and defending patents. In district courts, live expert testimony is key to proving infringement and invalidity. Accordingly, the legal protections governing the disclosure of expert testimony in discovery in both forums are carefully proscribed, but with notable distinctions
Unfettered Discretion: A Closer Look at the Board\u27s Discretion to Deny Institution
Get PDFTo ensure that the doorway to IPRs was not limitless, Congress de-lineated a specific threshold before a trial could be instituted. That threshold is set forth in 35 U.S.C. § 314(a), which provides that IPR may not be instituted unless the petition “shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” However, the Board has increas-ingly identified circumstances in which it will not institute IPR, even where a petitioner satisfies this statutory threshold. Indeed, the Board has seemingly adopted the view that it has essentially unfettered dis-cretion to deny institution, separate and apart from the “reasonable likelihood” standard. As explained below, neither the text of Section 314(a) nor the legislative history of the AIA appears to support the Board’s view; moreover, this interpretation may be hindering Congress’ intent to provide an effective administrative alternative to litigation on the issue of patent validity
Age, Equality, and Vulnerability
No full textThis Article uses age as an entry point for examining how temporal and methodological issues in egalitarianism make substantive equality an unattractive goal for vulnerability theory. Instead, vulnerabilitytheory should adopt a continuous doctrine of sufficiency, which is a better fit with vulnerability theory’s underlying aims and rhetoric. Instead of evaluating what individuals have in relation to others, sufficiency refocuses the inquiry on whether we have enough throughout the lifecourse. In the context of vulnerability theory, enough should be defined as the capability to be resilient as guaranteed by the responsive state
What is Nonmarriage?
No full textAs rates of cohabitation rise, and marriage becomes a status reserved almost exclusively for socio-economic elites, the scholarly calls for family law to recognize more nonmarital families grow stronger by the day. This Article unpacks contemporary proposals to recognize more nonmarital families and juxtaposes those proposals with family law’s contemporary marital regime. Family law’s status-based system provides a mostly simple and efficient means of distributing resources at the end of a marriage by imposing a formulaic, but distinctly communitarian, non-market-based approach to obligation, entitlement, and value. In full, the Article defends family law’s status-based system for what it does well, including dispensing with invasive inquiries into financial and sexual relationships, rejecting gendered market-based measures of recovery, and imposing communitarian obligations that can be efficiently enforced. It also acknowledges that this system leaves a growing class of people unprotected, but it suggests that many of those people, particularly low-income women of color, may want to be left out. The taxonomy provided in this Article should help scholars and legislators endeavoring to grapple with when it is appropriate to treat nonmarital couples as some kind of family. First, the nonmarriage proposals that impose communitarian obligations on cohabiting couples reject market-based measures of recovery but inflict categorization costs, which are invasive judicial inquiries into people’s financial and sexual practices. These proposals also may conscript those who can least afford, and have legitimate reasons to reject, communitarian obligations. Second, the nonmarriage proposals that do the best job of disrupting family law’s binary status system, while they respect the autonomy of those who do not want family law imposed on them against their wishes, run the risk of leaving those left vulnerable by the interdependencies of relationship with nothing. Finally, the proposals that suggest dispensing with most of family law and just relying on common law doctrines of contract and unjust enrichment inevitably incorporate gendered, neoliberal understandings of desert and reward because that is how the market assigns value. For those who want to reject a neoliberal approach to reward and obligation, there are benefits to family law exceptionalism and the much-maligned idea of seeing the family as the market’s opposite
She Was Surprised and Furious : Expatriation, Suffrage, Immigration, and the Fragility of Women\u27s citizenship, 1907-1940
No full textThis article stands at the intersection of women’s history and the history of citizenship, immigration, and naturalization laws. The first part of this article proceeds by examining the general legal status of women under the laws of coverture, in which married women’s legal existence was “covered” by that of their husbands. It then discusses the 1907 Expatriation Act, which resulted in women who were U.S. citizens married to non-U.S. citizens losing their citizenship. The following sections discuss how suffragists challenged the 1907 law in the courts and how passage of the Nineteenth Amendment—and with it a new concept of women’s political autonomy—conflicted with the 1907 law. The article continues by analyzing the 1922 Cable Act, which was intended to redress the 1907 law by providing a process for U.S. women who had lost their citizenship to regain it. Yet the Cable Act was extraordinarily stingy, and it created new problems for immigrant women attempting to gain U.S. citizenship and for expatriated U.S. women attempting to regain citizenship.The second part of the article explores the actual legal problems that women brought to Chicago’s renowned Immigrants’ Protective League—an organization founded and managed by some of the leading feminist reformers of the Progressive and New Deal Era and which provided legal advice and help to immigrants. Using the League’s documents, the article excavates how the 1921 and 1924 Immigration Quota Acts, along with the Cable Act, continued to discriminate against women and prevented some immigrant women from reuniting their families or gaining the benefits of citizenship. The article then examines the onset of large-scale deportations of immigrants in the 1930s and the specific and gendered pain that such immigrant women faced. The final part of the article explores the League’s efforts to amend discriminatory immigration and citizen- ship laws
Comments on Executive Ruilemaking and Democratic Legitimacy: Reform in the United States and the United Kingdom\u27s Brexit bt Susan Rose-Ackerman
Get PDFInto the Woods: A Biologic Patent Thicket Analysis
Get PDFSome drug companies, brand biologic companies, in particular, have been accused of covering only a single drug with more than eighty patents. These drug patents accumulate to what critics claim as one of the major culprits of high drug prices— “patent thickets.” However, current literature mostly focuses on the substantial patent counts and less on the characteristics and the causes of these patent thickets; but to effectively understand and tackle this issue, more thorough discussions are necessary. This article aims to provide further insight into this issue by analyzing and comparing the U.S. patents that cover top-selling biologics and small-molecule drugs. Results not only confirm the existence of biologic patent thickets—in which two of the three selected top-selling biologics have accumulated more than forty patents— but also show that more patents cover biologics than small-molecule drugs. Based on more in-depth analysis, this article further argues that the so-called “patent thicket” is, in fact, a cooperative effort of two types of patent thickets—Type I and Type II—that should be distinguished due to their differences in nature and the causes that give rise to them. Defined as large numbers of non-overlapping or inventive patents that cover different aspects of the drug, Type I Patent Thickets are formed due to the complex nature of biologics and biosimilars. Type II Patent Thickets, on the other hand, are arguably overlapping or non-inventive patents that are prone to double patenting. They cover the same aspect of the drug and owe their existence to the utilization of terminal disclaimers. The two types of patent thickets jointly contribute to the large number of patents that fend off patent challenges; the stretched year spans of collective patent terms that delay biosimilar entry; and the exorbitant drug prices that harm patients. In order to prevent the negative impacts of patent thickets without completely sacrificing the merits patents themselves provide, this article presents two proposals: one being the election of patents to assert to mitigate the adverse effects of Type II Patent Thickets, and the other being a more transformative reform that would target against both types of patent thickets