By Dan L. Burk. Full text here. Recent commentary on the patent system has argued that there is little evidence supporting the incentive justification for patenting, so that continued faith in patents constitutes a kind of irrational adherence to myth or falsehood. While an obituary for the incentive theory of patenting is likely premature, the concept…

By Justin Pidot. Full text here. What should the Supreme Court do with a tie vote? A long-standing rule provides that when the Justices are evenly divided, the lower court’s decision is affirmed and the Supreme Court’s order has no precedential effect. While tie votes arise with relative rarity, the recent death of Justice Antonin Scalia…

By Daniel J. Hemel & Lisa Larrimore Ouellette. Full text here. The conventional economic justification for global IP treaties begins from the premise that nation-states, if left to their own devices, will rationally underinvest in innovation incentives such as IP laws, grants, tax credits, and prizes (the “underinvestment hypothesis”). Under this account, nation-states will free-ride on…

By Orly Lobel. Full text here. New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging…

By Helen Norton. Full text here. Employers’ lies, misrepresentations, and nondisclosures about workers’ legal rights and other working conditions can skew and sometimes even coerce workers’ important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers’ rights…

By Guido Calabresi & Eric S. Fish. Full text here. States form federalist unions when they want to align for economic or security reasons in spite of fundamental moral disagreements. By decentralizing policy-making authority, federalism allows such states to enjoy the benefits of union without being made to live under laws their citizens find immoral. But…

By Albert C. Lin. Full text here. Proposals to govern geoengineering research have focused heavily on the physical risks associated with individual research projects, and to a somewhat lesser degree on fostering public trust. While these concerns are critical, they are not the only concerns that research governance should address. Generally overlooked, and more difficult to…

By Christopher Buccafusco & David Fagundes. Full text here. Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no financial harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-pecuniary…

By Stacey A. Tovino. Full text here. In its broadest sense, this Article challenges the lack of legally enforceable rights available to individuals in United States Immigration and Customs Enforcement (ICE) custody. More specifically, this Article examines ICE’s widespread practice of secluding immigration detainees for lengthy periods of time for purported administrative, disciplinary, or protective reasons.…

By Prentiss Cox. Full text here. Government enforcement actions have returned tens of billions of dollars to consumers, investors and employees. This “public enforcement compensation” is important to effective civil law enforcement, yet it is poorly understood and increasingly criticized. Recent scholarship asserts that public compensation mimics class action recoveries and raises the same concerns of accountability…