• Archive for February, 2011

    New Article by Ed Lee

    by  • February 28, 2011 • Scholarship • 0 Comments

    Ed Lee's new article, Measuring TRIPS Compliance and Defiance: The WTO Compliance Scorecard, has been published in the University of Georgia Journal of Intellectual Property Law. Here's the abstract:

    This Article proposes the tabulation of a TRIPS Compliance Scorecard measuring a country’s attempt to correct any treaty violation that a WTO panel or the Appellate Body has found against the country. The scorecard can provide greater transparency and attention to member compliance with WTO treaty obligations, and it would enable greater cross-country comparisons. Part I surveys the number of IP disputes brought before the WTO since its inception (2005 to 2011), with particular focus on those disputes that culminated in a panel or Appellate Body decision. Part II proposes the WTO’s adoption of a TRIPS Compliance Scorecard that will keep track of a country’s response to correct its violation. Two alternative methods are offered – a simple and a complex score to track the violating country’s response. Scorecards are computed for WTO countries under both methods; in both cases, the U.S. ends up with the lowest score in 2011. Part III discusses other measures that can be adopted alongside the TRIPS Compliance Scorecard, including computing scorecards for countries’ compliance in all other WTO disputes and the possibility of imposing procedural penalties on countries with low compliance scores. Part IV addresses objections.

    Read the full article here.

    Article by Joan Steinman, Managing Punitive Damages: A Role for Mandatory ‘Limited Generosity’ Classes and Anti-Suit Injunctions?

    by  • February 15, 2011 • Scholarship • 0 Comments

    Newly posted to SSRN, Managing Punitive Damages: A Role for Mandatory ‘Limited Generosity’ Classes and Anti-Suit Injunctions? by Joan Steinman was published in a 2001 volume of the Wake Forest Law Review. Here's the abstract:

    In this Article, I consider whether "limited generosity" classes may be used to determine a defendant's entire liability for punitive damages arising from a defined course of conduct. The goals of such a class action would include adequately punishing and deterring the defendant, keeping the defendant’s liability within state-mandated and constitutional limits, and facilitating equitable distribution of the damages among injured plaintiffs. The Article describes the legal limits on punitive damages liability that states have established and that the Supreme Court has held substantive due process to impose, and then carefully examines whether such limits constitute a predicate for mandatory class certification under Rule 23(b)(1)(B) of the Federal Rules and analogous state rules. I consider, in particular, the implications of the Supreme Court’s 1999 decision in Ortiz v. Fibreboard Corp. for such punitive damages classes. In the final section of the Article, I consider the obstacles to issuance of anti-suit injunctions that could prevent mandatory punitive damages classes from being undermined by parallel pursuit of such damages in separate actions brought by class members.

    Read the full article here.

    Recent Article by Felice Batlan, Florence Kelley and the Battle Against Laissez-Faire Constitutionalism

    by  • February 14, 2011 • Scholarship • 0 Comments

    Felice Batlan recently posted an article to SSRN, Florence Kelley and the Battle Against Laissez-Faire Constitutionalism. Here's the abstract:

    The usual story of the demise of laissez-faire constitutionalism in the 1930’s features heroes such as Louis Brandeis, Felix Frankfurter and the great male legal progressives of the day who rose up from academia, the bench, and the bar, to put an end to what historians label "legal orthodoxy." In this essay, I seek to demonstrate that Florence Kelley was a crucially important legal progressive who was at the front lines of drafting and defending new legislation that courts were striking down as violating the Fourteenth Amendment and State constitutions. Looking at who was drafting and lobbying for path breaking progressive legislation and how such legislation was being defended accomplishes a number of things. It uncovers how male legal actors at times worked closely and collaborated with women reformers. Furthermore, thinking about women reformers as central legal actors demands that we examine our own categorical thinking. Placing progressive era women reformers in a non-porous women’s sphere, while imagining that elite male legal thinkers were sealed within an all-male world of academics, lawyers and jurists, distorts late nineteenth and early twentieth century legal culture and leads to what we might call "intellectual segregation." This essay is thus a work of bricolage that brings together the scholarship on women’s leading roles in progressive era reform with mainstream narratives of legal history.

    Read the full article here.

    New Article by Carolyn Shapiro and Christopher Schmidt, Oral Dissenting on the Supreme Court

    by  • February 10, 2011 • Scholarship • 0 Comments

    Professors Carolyn Shapiro and Christopher Schmidt have a new article in the William & Mary Bill of Rights Review, Oral Dissenting on the Supreme Court. Here's the abstract:

    In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have different reasons for deciding to announce their opinions, and the reception and potential influence of an oral dissent varies according to the situation. Recent scholarly efforts to identify a set of factors for predicting the likelihood of an oral dissent thus may miss the forest for the trees. The more interesting question, we suggest, is not necessarily why a Justice might decide to announce a dissent, but why certain oral dissents seem to reverberate while others (perhaps most) are ignored and forgotten. We therefore seek to recenter the discussion of oral dissents, moving to an empirical and analytical discussion of the role that oral dissents actually play in the dynamic relationship between the Court and the American people.

    Read the full article here.

    Dean Krent’s Forthcoming Article, Federal Power, Non-Federal Actors: The Ramifications of Free Enterprise Fund

    by  • February 8, 2011 • Scholarship • 0 Comments

    Coming soon to Fordham Law Review, Dean Krent's article Federal Power, Non-Federal Actors: The Ramifications of Free Enterprise Fund. Here's the abstract:

    In Free Enterprise Fund v. Public Company Accounting Oversight Board the Supreme Court invalidated Congress’s decision to protect members of the Board from at will removal by the Securities and Exchange Commission, whose members in turn are protected from at will removal at the hands of the President. In the Court’s view, the congressional structure – in particular, the double layer of tenure insulation – undermined the Article II imperative that all exercises of significant executive authority be subject to strong supervision by the President. The Court’s insistence in Free Enterprise Fund on formal presidential control over an inferior executive branch entity should cast grave doubt on the constitutionality of comparable congressional delegations outside the executive branch. Should Congress delegate to a private or state entity, no removal is likely possible, let alone the removal for cause found insufficient in Free Exercise Fund. Had Congress delegated the same financial oversight duties scrutinized in Free Exercise Fund to a commission comprised of the heads of Deloitte, PricewaterhouseCoopers, KPMG, and Ernst & Young, the President’s removal authority would be further eroded, as would be the case if Congress had delegated that authority to a commission of state secretaries of the treasury. The recent Supreme Court decision therefore may toll congressional experimentation to vest executive authority in private and state hands.

    I first argue that Free Enterprise Fund should cabin congressional delegations of significant authority to private parties, whether to self-regulatory organizations or private experts. Such delegations deprive the President of the ability to superintend implementation of the law. I conclude, however, that a similar delegation to a state entity should survive the Free Enterprise Fund analysis. Although the same concern for executive branch control exists, our structure of federalism presupposes that the federal government can share power with the states. The fear of congressional aggrandizement is much reduced when Congress delegates to state as opposed to private entities. Accordingly, the essay concludes that Free Enterprise Fund should bar delegations of significant authority to private individuals and groups but leave untouched most congressional efforts to share power with state governmental entities.


    Read the full article here.

    New Article, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study, by Chris Seaman

    by  • February 3, 2011 • Scholarship • 1 Comment

    Professor Chris Seaman has published a new article to SSRN, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study. Here's the abstract:

    Willful patent infringement is a critical issue in patent litigation, as it can result in an award of up to treble (enhanced) damages. In a 2007 decision, In re Seagate, 497 F.3d 1360 (en banc), the Federal Circuit significantly altered the standard governing willful infringement by requiring the patentee to prove at least "objective recklessness" by the accused infringer. Many observers predicted that this heightened standard would result in far fewer willfulness findings and enhanced damage awards. To date, however, there has been no comprehensive empirical study of Seagate's actual impact in patent litigation.

    This paper fills that gap by analyzing six years of decisions in the district courts – three years before and after Seagate – on willful patent infringement and enhanced damages. Surprisingly, it finds that willful infringement was found only about 10% less often after Seagate. In addition, after Seagate, juries find willful infringement substantially more often than judges do at trial. However, enhanced damages are awarded less frequently and in lower amounts when juries find willfulness compared to judges.

    Finally, this paper evaluates the impact of several common factors on willful infringement decisions after Seagate. Based on the empirical data collected in this study, the existence of a "substantial" or "legitimate" defense to infringement is the strongest predictor of a finding of no willfulness after Seagate, while evidence of copying by the accused infringer was the strongest predictor of willfulness. In contrast, the remaining factors studied – opinions of counsel, attempts to design around the patent, reexamination at the PTO, and bifurcation of willfulness from liability at trial – had no statistically significant effect on willfulness decisions.

    Read the full article here.