Apr 29, 2024 Lisa Larrimore OuelletteIntellectual Property Law
Nikola Datzov & Jason Rantanen,
Predictable Unpredictability , __ Iowa L. Rev. (forthcoming 2024), available at
SSRN (Feb. 26, 2024).
It is hard to think of a patent doctrine—or indeed any doctrine in IP law as a whole—that has received more critical attention over the past decade than patentable subject matter. In a series of four cases from 2010 to 2014, the Supreme Court sparked an ongoing controversy by imposing sharp limits on patenting inventions such as medical diagnostics, human genes, software, and business methods. In the wake of these decisions, an invention may be groundbreaking and important, but nonetheless unpatentable if it falls into the Court’s implicit exceptions to patent eligibility for “laws of nature,” “natural phenomena,” and “abstract ideas.” Under the “Alice/Mayo” test, if a patent claim is “directed to” one of these ineligible concepts, it is patentable only if it also contains an “inventive concept” such that the claim “amounts to significantly more” than a patent on the ineligible concept.
These subject matter limits led to a barrage of criticism, much of which focused on the test’s unpredictability. The criticisms have come from judges, academics, practitioners, the DOJ, and even memes. Bipartisan legislation has been repeatedly introduced to address the “confused, constricted, and unclear” law. Senators have also tasked the USPTO with collecting public comments on the issue.
Yet, according to a new draft article by Nikola Datzov and Jason Rantanen, the narrative of unpredictability is on “shaky empirical ground.” Surprisingly, they argue that over the past decade, disputes about patentable subject matter have been more predictable than disputes about other patent doctrines. Datzov and Rantanen analyzed all patent eligibility decisions by the Federal Circuit between 2012 through 2022. This court hears appeals both from all district court patent litigation and from decisions by examiners at the USPTO. They found that the Federal Circuit not only affirmed lower tribunals almost 90% of the time, but also almost always affirmed on the same basis. These cases also involved fewer dissents than on other patent law issues. The authors are not arguing that the Alice/Mayo test is easy to apply, or that it is necessarily good policy. But their results should shift the focus of the ongoing patentable subject matter debates. Continue reading "The Surprising Predictability of Patent Eligibility"
Apr 29, 2024 Doron DorfmanEquality
In recent years, and certainly since Dobbs v. Jackson Women’s Health, grave concerns about reproductive rights have proliferated. While most of the discussion has been focused on attacks on the right to end a pregnancy and the child welfare system, other issues that fall within the umbrella of the reproductive justice movement also deserve serious attention. One of those aspects is “birth justice.”
In their canonical book Reproductive Justice: An Introduction, Lorretta Ross and Ricky Solinger acknowledge that “all people giving birth are entitled to safe, dignified, and compassionate health care” (p. 85). They view birth justice, defined as “the right to give birth with whom, where, when, and how a person chooses,” as a subset of reproductive justice (p. 96). Birth justice is an issue of equality specifically considering that maternal mortality rates of Black women are 2.6 times than those of white women. Yet, the role that the law plays in ensuring birth justice remains underexplored in the legal literature on reproductive justice. Elizabeth Kukura’s exciting work works to fill this gap in the literature while at the same time situating birth justice within the health law literature. Continue reading "Dealing with Doulas: Birth Justice, Delivery Room Conflicts, and the Rigidity of the Health Care System"
Apr 26, 2024 Bethany BergerLexNative Peoples Law
During Elouise Cobell’s campaign against federal management of Indian trust accounts, she learned that the U.S. did all sorts of things with the money. In the 1970s, for example, trust funds went to bailing out New York City and the Chrysler Company. Meanwhile, Native beneficiaries of the accounts couldn’t get payouts to rebuild destroyed homes or care for ill loved ones. And the records of who the accounts belonged to and what should be in them were out-of-date, kept in garbage bags and dilapidated boxes, destroyed by water and gnawed by rodents.
The history of federal Indian trust funds might be seen as simply another example of bureaucratic mismanagement and lack of concern for Indigenous property. But Emilie Connolly’s research shows that it is something more. In, Fiduciary Colonialism: Annuities and Native Dispossession in the Early United States, Professor Connolly examines the early history of such trust accounts to show that their creation and management was itself a tool of colonial domination. By holding and gradually paying out moneys owed to tribes, the United States could achieve expropriation without expensive wars, encourage tribal dependence, and invest the funds to finance further dispossession. As Connolly writes, “[a]nnuities and trust funds anchored . . . a mode of territorial acquisition and population management carried out through the expansion of administrative control over Native peoples’ wealth.” (P. 227.) Continue reading "Twisted Trust"
Apr 25, 2024 Jade CraigCourts Law
Aliza Shatzman, the founder of the Legal Accountability Project (LAP) and the author of The Clerkships Whisper Network, has kicked off a national conversation about the clerkship experience and lack of accountability for judges who mistreat their law clerks. It is important to continue to refine the information available to law students and alumni considering applying for clerkships. The many people who have great clerkship experiences should describe those experiences “in the rosiest of terms.” But referencing Charles Dickens’ A Tale of Two Cities, Shatzman identifies the paradox: “the best of circumstances, the worst of circumstances.” A clerkship lives at the extremes – if it is very good, it is wonderful and a blessing, and if it goes very badly, it can be the worst work experience one has ever endured. The work environment often revolves around one person – the judge.
Mistreatment does not affect all clerks equally, but may vary with the personal identity of the clerk. Some difficult work environments make it difficult for the employee to disentangle the mistake from the employer’s negative or abusive reaction. The employee starts to believe that perhaps it is their fault or they deserved the mistreatment. An employer who is a serial abuser often suggests the employee deserves the mistreatment, avoiding accountability for their actions or their part in the conflict. The first reaction for many employees is to internalize the criticism and blame themselves, deterring them from reporting the experience. Continue reading "The Uneven Impact of Mistreatment on Law Clerks"
Apr 24, 2024 Sam F. HalabiInternational & Comparative Law
As I have long argued, intellectual property represents a neglected dimension of the global structures affecting equity and redistribution, and I welcome a new volume dedicated to this essential nexus of law and justice, The Cambridge Handbook of Intellectual Property and Social Justice edited by Steven Jamar and Lateef Mtima. Although maintaining a general focus on intellectual property and social justice topics arising in the context of the United States, the volume includes a valuable section on “Intellectual Property Social Justice in Global Perspective” focusing on gender and development disparities. Featuring chapters from Zehra Betul Ayranci, J. Janewa Osei-Tutu, Mariana Bernal Fandiño, Marcela Palacio Puerta, and Metka Potočnik, Jamar and Mtima provide scholars of intellectual property and social justice one of the most important resources to date on how the control of access to innovation, images, and compositions both exacerbates inequality but also how those same intellectual property protections maybe restructured to ameliorate it.
This book is one I like a lot, and I hope others active in the study and shaping of intellectual property do as well. It is perhaps the most comprehensive volume on the juxtaposition of intellectual property and social justice—many scholars including myself analyze the socially beneficial and pernicious effects of current intellectual property approaches, but far fewer characterize them in such a specific way. Jamar and Mtima and their contributors have offered novel and creative recommendations to advance social justice through intellectual property. Indeed, Madhavi Sunder brings this point home in a particularly compelling way in her chapter on Intellectual Property After George Floyd. Continue reading "Rethinking Intellectual Property and Social Justice – A Rich Resource with Comparative Lessons"
Apr 23, 2024 Emma CaveHealth Law
In Gillick v West Norfolk and Wisbech Area Health Authority (1986) the UK House of Lords held that minors under the age of 16 could access contraceptive advice and treatment in their own right provided they satisfied a test which became known as “Gillick competence.” Lord Fraser said:
Provided the patient … is capable of understanding what is proposed, and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorise the medical man to make the examination or give the treatment which he advises. (P. 409.)
As a result, Gillick competent minors were able to consent to treatment and medical examination, and while they might be encouraged to involve their parents, they were entitled to keep the matter confidential.
In Life without Gillick, Adolescent sexual and reproductive healthcare in Ireland, published in Clinical Ethics, Barry Lyons and Mary Donnelly remind us of Gillick’s value. They articulate clearly and compellingly what is lost when a jurisdiction declines to endorse Gillick’s central premise. Continue reading "Gillick Competence"
Apr 22, 2024 Kaiponanea MatsumuraFamily Law
It has become a common refrain among progressive legal scholars and activists that Obergefell v. Hodges, securing the right of same-sex couples to marry under the Fourteenth Amendment, primarily benefits already privileged members of the LBGTQ+ community, leaving those with marginalized racial, gender, and class identities behind. These scholars claim that the right to marry will either fail to benefit communities of color, sidestep the systemic issues that subordinate them, or even legitimate structures of white supremacy. (Pp. 220-21.) The prediction that follows is that securing marriage rights for same-sex couples will appease the wealthy, white, cisgender contingent, ultimately undercutting support for the movement’s more transformational goals of sexual and gender liberation, and the push to value broader configurations of relationships. I have raised these very views in class every time I teach the marriage equality cases.
An exciting new study by Professors Russell Robinson and David Frost challenges these views, cautioning that they need to be qualified if not substantially revised. Robinson and Frost start from what should be a pedestrian—but in fact feels like a radical—premise: perhaps we should ask LGBTQ+ people who are also racial, gender, and/or gender-identity minorities how they themselves perceived Obergefell’s “personal impact on their lives and relationships.” (P. 222.) The responses they receive are, to put it mildly, tantalizing. Although only a slim majority of participants described Obergefell as having “an emotionally meaningful impact on them,” very few criticized the decision to make marriage equality a priority. (P. 226.) Several participants were able to distinguish between their own personal disinterest in marriage and their happiness at other members of the LGBTQ+ community being able to marry. (P. 229.) And several reported that the decision made them feel more included and less stigmatized within their families of origin, religious institutions, and communities. (P. 236.) The authors contend that these findings should influence how legal scholars talk about the Obergefell decision and conceive of the relationship between judicial decisions and lived experiences of equality. I will argue here that their findings should also guide the development of future social movement strategies. Continue reading "Looking up to Obergefell"
Apr 19, 2024 Adam ThimmeschTax Law
The stark contrast between the United States’ widespread prosperity and the deep-seated poverty afflicting many of its people and communities underscores the nation’s complex economic landscape. Equally complex are the political and legal landscapes surrounding our nation’s anti-poverty efforts. States currently have much of the responsibility for administering federal anti-poverty programming and for directly serving the people and places suffering from economic hardship. Simultaneously, however, states are restricted in their abilities to pursue social welfare goals because of the mobility of capital and labor within the United States. States have responded to these challenges by turning to investment-based tax credits to drive development, but that approach has been disfavored by many progressives and often fails to deliver help to the in-state people and places in need.
Michelle D. Layser offers a unique assessment of this difficult situation in her recent article, Removing Barriers to State Tax Incentive Reform. In that piece, Layser weaves together her knowledge of the political economy of community development, place-based tax incentives, and the federal constitutional restrictions under which states operate to argue that tax incentives likely remain the best path forward states under current conditions. However, states will need help to overcome some key barriers, including the dormant Commerce Clause, to ensure the success of those programs. Continue reading "Opportunity and Obstacle: State Tax Incentives and the Fight Against Poverty"
Apr 18, 2024 Mary FanCriminal Law
Trying to unmask Seattle Police Department police officers who may have participated in the insurrection at the U.S. Capitol on January 6, then-law student Sam Sueoka turned to public records requests under state sunshine laws. Six police officers who were in Washington, DC on January 6 sued Sueoka and other members of the public seeking information, aiming to block release of the information. Meanwhile, the Seattle Office of Police Accountability found that two of the six officers had violated departmental policies or laws in their conduct during the U.S. Capitol riot on January 6. The report did not disclose the officers’ names. A state Superior Court Judge sided with Sueoka on the right to public disclosure, but a panel of the state appellate court reversed, siding with the police officers on secrecy. This case involving my local police department—reportedly home to the largest number of officers identified as in DC during the January 6 events—is just a recent example of the myriad legal battles surrounding police secrets and illustrates why I find Christina Koningisor’s article Police Secrecy Exceptionalism in the Columbia Law Review so timely and important.
Koningisor explains that every state has “transparency regimes”—sets of statutes that include public records law that give the public access to information, open meetings and open-data laws, among other obligations. Police departments are theoretically an agency like other governmental agencies bound by such transparency regimes. Yet police departments enjoy numerous protections that maintain opacity and police secrecy. Koningisor excavates the web of carve-outs and exemptions for law enforcement that together creates what the article terms “law enforcement exceptionalism” that the article analogizes to the secrecy that national security agencies enjoy. Protests and pain over police killings have led to radical transparency-based ideas like police-worn body cameras and reforms in police transparency laws. Yet, as Koningisor’s excellent article shows, the matrix of laws and practice exempting police departments from transparency regimes remain robust, maintaining police secrecy exceptionalism. Continue reading "Police Secrecy and Transparency Laws"
Apr 17, 2024 Paul HorwitzConstitutional Law
- Tom Ginsburg, A Constitutional Perspective on Institutional Neutrality, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds), (Forthcoming) availible at SSRN (Feb. 12, 2024).
- Robert Post, The Kalven Report, Institutional Neutrality, and Academic Freedom, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds) (Forthcoming) availible at SSRN, (Aug. 19, 2023).
The two papers on offer here are neither complementary nor opposed as such, although they have points of agreement and disagreement. They are properly paired, however. Most simply, both papers are chapters in a forthcoming book, one I eagerly await: Revisiting the Kalven Report: The University’s Role in Social and Political Action, edited by Keith Whittington and John Tomasi and published by the Johns Hopkins Press. As their titles suggest, they concern the same question: Should “the university,” in a corporate sense, speak on the controversies of the day?
This is a perennial question, of course. But it was given renewed attention by the events of 2020, which led to hundreds of universities issuing statements of varying strength and detail. And the question returned with the mishegoss of university responses to October 7th and the larger Israel-Gaza conflict, the responses to those responses, the replies to those responses and so on. Continue reading "“The Wise Know When Not to Talk:” Revisiting the Kalven Report"
