Note: 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”…
Continue ReadingNote: Blocking Blocks at the Border: Examining Standard-Essential Patent Litigation Between Domestic Companies at the ITC
By Matthew Norris. Full text here. The United States International Trade Commission was created to protect domestic industry and American workers from illegal foreign trade practices. Increasingly, domestic companies have turned to the ITC seeking relief for the infringement of standard-essential patents (SEPs) by other domestic companies. In exchange for having their patented technologies adopted as…
Continue ReadingGovernment Nonendorsement
By Nelson Tebbe. Full text here. What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse Christianity…
Continue ReadingCasual Ostracism: Jury Exclusion on the Basis of Criminal Convictions
By Anna Roberts. Full text here. Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions must be embittered against the state, do not justify their…
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