Spillover Across Remedies
By Michael Coenen. Full text here. Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to a single remedy affect the definition of a substantive rule that governs in multiple remedial settings. For example, the severe remedial consequences…
Continue ReadingNote: A Step in the Right Direction: Patent Damages and the Elimination of the Entire Market Value Rule
By Jaimeson Fedell. Full text here. This Note argues that the entire market value rule is an obsolete conception because it can award companies for value they did not create. Accordingly, the rule should be abandoned entirely and replaced with reasonable royalty calculations that focus on past licensing agreements if they are available.
Continue ReadingNote: Recognition of Civil Unions and Domestic Partnerships as Marriages in Same-Sex Marriage States
By Inga Nelson. Full text here. There is currently a patchwork of laws governing same-sex relationships across the United States. Some states issue marriage licenses, while some states have civil unions, domestic partnerships, or other forms of legal recognition. When couples with alternate forms of legal recognition relocate from the issuing state their new state has…
Continue ReadingNote: Particulars of Particularity: Alleging Scienter and the Proper Application of Rule 9(b) to Duty-Based Misrepresentations
By Morwenna Borden. Full text here. Claims of negligent misrepresentation and fraud by omission are generally held to be derivatives of fraud. The appropriate pleading standard for fraud is clearly governed by Federal Rule of Civil Procedure 9(b)—fraud claims must be alleged with particularity. However, the circuits are divided when it comes to the proper pleading…
Continue ReadingMaking Patents Useful
By Sean B. Seymore. Full text here. It is axiomatic in patent law that an invention must be useful. The utility requirement has been a part of the statutory scheme since the Patent Act of 1790. But what does it mean to be useful? The abstract and imprecise nature of the term combined with the lack…
Continue ReadingBeyond One Voice
By David H. Moore. Full text here. The one-voice doctrine, a mainstay of U.S. foreign relations jurisprudence, maintains that in its external relations the United States must be able to speak with one voice. The doctrine has been used to answer critical questions about the foreign affairs powers of the President, Congress, the courts, and U.S.…
Continue ReadingSpeech Engines
By James Grimmelmann. Full text here. Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor…
Continue ReadingCrowdsourcing Clinical Trials
By Jonathan J. Darrow. Full text here. Pharmaceutical approval today suffers from a serious ethical flaw: newly FDA-approved drugs are de facto “tested” on an unknowing general public in the months and years immediately following drug approval, without either the informed consent of the consuming public or an understanding by the public of the risks that…
Continue ReadingNote: What’s My Age Again? The Immigrant Age Problem in the Criminal Justice System
By Ross Pearson. Full text here. Each year, immigrants arrive in the United States without knowing their exact age. When they arrive, United States Citizenship and Immigration Service (USCIS) provides each immigrant official documents that list personal information, including a birth date. When immigrants do not know their exact age, USCIS allows them to use an…
Continue ReadingNote: Amending Title VII to Safeguard the Viability of Retaliation Claims
By Brandon Wheeler. Full text here. Before a victim of employment discrimination can pursue her claims in federal court, she must first exhaust her administrative remedies. This is done by filing a charge with the Equal Employment Opportunity Commission or an equivalent state agency. After reviewing and investigating the charge, the EEOC usually issues a “right-to-sue”…
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