The Rules and Standards of Patentable Subject Matter
The general understanding of the rules-versus-standards debate is that it involves a trade off between administrative costs and error costs. A legal regime governed by a set of bright-line rules will have high error costs because rules tend to be over- and under-inclusive, but will have
This Article argues that patent law has no special exemption from well established jurisprudential dilemmas. Instead, patentable-subject-matter doctrine encompasses two distinct types of restrictions on patent rights, each with their own advantages and disadvantages. The first type, rule-like categorical exclusions from patentability, are over-inclusive but cheap to administer, which means such categorical exclusions can be justified if the administrative cost savings outweigh the error costs. The second type, standard-like limits on patent scope, have high administrative costs because of their vagueness but have low error costs when they are properly administered. Critics can only characterize patentable-subjectmatter doctrine as both over-inclusive and hopelessly vague by cherry picking the disadvantages of each type of restriction without carefully distinguishing between them. As with many other areas of law, whether the patent system should rely more on rules or standards to govern a particular field of technology ultimately depends on the trade off between error costs and administrative costs, and the proper balance is an empirical question that will likely differ across different fields of technology.
Defining Recklessness: A Doctrinal Approach to Deterrence of Secondary Market Securities Fraud
Ann Morales Olazabal
Little has been written about recklessness as a level of intent sufficient to impose civil liability, even less in the context of the federally implied cause of action for securities fraud. This article engages the concept of recklessness in the setting of class action, fraud-on-the-market lawsuits
By providing an intellectually grounded prescription for the evaluation of inferences of recklessness in 10(b) cases, this work both harmonizes the federal common law of securities fraud and reinforces its normative power. At the same time, the author’s conception of recklessness revives largely moribund legislative efforts to increase executive accountability and to improve the quality of corporate disclosure for the benefit of shareholders. Thus, it adds meaningfully to the literature seeking to establish and put into service an optimal level of securities fraud deterrence.
Acting Like Lawyers
In the past, learning to “think like a lawyer” was enough to succeed in law school and beyond. Those days are gone. Leaner economic times have made legal employers hungry for better-prepared candidates. Educators and practitioners alike turn a critical eye to recent law school
Involuntary Servants: The NCAA’s Abridgement of Student-Athletes’ Economic Rights in Perpetuity Violates the Thirteenth Amendment
John K. Tokarz
Using the National Collegiate Athletic Association (NCAA) as a backdrop, this Comment proposes an implied private cause of action under the Thirteenth Amendment. The problem: the NCAA and its member institutions earn billions of dollars every year on the backs of essentially
After providing a brief history of the Thirteenth Amendment the Comment concludes that an implied private cause of action under the misunderstood amendment would be feasible. It then applies this cause of action to the case of Ed O’Bannon, a former college-basketball star who recently filed a lawsuit against the NCAA alleging that the organization’s image-rights waiver violates antitrust law. In proposing the Thirteenth Amendment claim, this Comment focuses on the system of exploitation that the NCAA has created. It provides an in-depth look at the commercial giant that the NCAA has become and exposes an underbelly marked by academic fraud and atrocious graduation rates.
Before Beginning, Plan Carefully: A Call for Public Comment on the New Forest Planning Rule
The National Forest Management Act (NFMA) paved the way for the management of the National Forests based on maintaining viability for multiple uses, including recreation, species and habitat diversity, and timber harvesting. However, it has become clear that the
With the Department of Agriculture currently developing a new planning rule, it is imperative that public comments focus on how best to reinstate environmental protections into forest management. Incorporating both NEPA requirements and Environmental Management System planning in the development of Forest Plans would benefit National Forests by providing detailed, yet flexible, substantive plans for entire forest areas to allow for greater planning foresight and the consideration of all cumulative environmental impacts. The general public can have a significant impact on this new planning rule through public comment. This Comment encourages the public to engage in the rulemaking process and offers specific guidance for the areas upon which it should focus.