Jan 6, 2021 Linda S. MullenixCourts Law
Thomas D. Russell,
Frivolous Defenses (Aug. 17, 2020), available at
SSRN.
From the mid-1980s through the turn of the twenty-first century, tort reform advocates, corporate entities, politicians, and lobbyists have raged about an alleged plague of frivolous lawsuits clogging state and federal dockets. In what perhaps might be characterized as revenge of the plaintiffs’ bar, Thomas Russell has turned the table and written the first systematic study of frivolous defenses. This provocative article, which has raised the ire of insurance defense attorneys, is worth reading as a compelling counterpoint to the frivolous lawsuit narrative.
Russell is a torts professor and plaintiffs’ attorney in Colorado. Based on his experience representing plaintiffs in auto accident litigation, Russell concluded that “Sometime after the first-year civil procedure course, insurance defense lawyers learn to ignore the rules of civil procedure when filing answers to lawsuits.” In handling client cases, insurance defense attorneys repeatedly frustrated Russell with the paucity of their responses to the averments in his complaints. Trial judges frustrated Russell by denying his motions concerning the inadequacy of defense responses.
Russell anchors his discussion in Nora Freeman Engstrom’s scholarship on “settlement mills.” He notes that Engstrom’s scholarship demonstrates how plaintiffs’ lawyers participating in settlement mills engage in routinized practices, conduct little factual investigation, and take shortcuts to achieve the quick settlement of small cases. Russell’s article crosses from the plaintiffs’ side of the docket to examine the work of insurance defense lawyers in auto accident lawsuits who respond by filing boilerplate, largely non-responsive answers to plaintiffs’ averments. As titillating as studies of plaintiffs’ lawyers may be, additional study of the plaintiffs’ side without a correlative look into defense work perpetuates a distorted view of tort litigation. His study of insurance defense practices is intended to provide this balance. Continue reading "A Non-Frivolous Challenge to Frivolous Defenses"
Jan 5, 2021 Sarah BursteinIntellectual Property Law
Aman Gebru,
Patents, Disclosure, and Biopiracy, 96
Denv. U.L. Rev. 535 (2019), available at
SSRN.
A new patent application claims to have invented a process for using turmeric to “augment the healing process of chronic and acute wounds.” Unbeknownst to the patent examiner, this spice has been used for this purpose—for centuries—in India. Because the process isn’t new, it shouldn’t be patentable. But what if the patent examiner doesn’t know about that longstanding prior use?
Because traditional knowledge (TK) isn’t typically found in the sources of information that patent examiners can easily access—such as other patents or printed publications—an applicant may be able to get a patent for something they didn’t invent. Or the patent they get may cover significantly more than whatever refinements or improvements the applicant actually did invent.
Indeed, in the real-life case alluded to above, a U.S. patent did issue. When the fact that turmeric had been long used to treat wounds in India was brought to the attention of the U.S. Patent & Trademark Office (USPTO), the patent was ruled invalid. But for a time, there was a U.S. patent covering this old technology.
If we don’t want patents like this to issue, we need to get better information to U.S. patent examiners. But how can we do that? In Patents, Disclosure, and Biopiracy, Aman Gebru argues that patent applicants should be required to disclose their use of genetic resources or traditional knowledge. This article is noteworthy for its detailed examination of how such a requirement could fit into U.S. patent law, even without legislation. Also noteworthy is its use of law-and-economics arguments for this position rather than the more conventional approaches that have relied on equity and distributive justice arguments. Continue reading "How to Thwart Biopiracy"
Jan 4, 2021 Marc-Tizoc GonzálezLexPoverty Law
Focusing on Black American lives during the Covid-19 pandemic of 2020, UDC Law Professor Etienne C. Toussaint’s latest article is a tour de force, which provocatively yet persuasively argues that U.S. history, law, and society iteratively reconstitute socioeconomic inequality through “collective rituals of white supremacy that both create and reconstitute anti-Black racism and redeem white privilege.” (P. 5.) For Toussaint, the catastrophe of pandemic illuminates the fragility of U.S. democracy in two significant ways: not only has the pandemic unmasked “the adverse impact of decades of inequitable laws and public policies in low-income Black communities across the United States[,]” but it has also spotlighted “America’s racially biased, violent, and supervisory policing culture[.]” (P. 3.)
These themes are well-known to scholars of Critical Race Theory (CRT) and poverty law in the United States. Toussaint’s contribution feels exciting and noteworthy because of his skillful synthesis of multiple literatures within legal scholarship and across the disciplines, including inter alia, anthropological theory on rituals; critiques of rights-based discourse (domestic and international) for reifying abstract liberal ideologies of equality, liberty, and universalism; and an adroit evaluation of Martha Fineman’s theory of human vulnerability (and Amartya Sen’s theory of development as freedom) in light of the collective experience of Black Americans under white supremacy. Continue reading "Visibly Fragile America"
