Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Global health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Self-Realizing Inventions and the Utilitarian Foundation of Patent Law

Abstract: Unlike other forms of intellectual property, patents are universally justified on utilitarian grounds alone. Valuable inventions and discoveries, bearing the characteristics of public goods, are easily appropriated by third parties. Since much technological innovation occurs pursuant to significant expenditure - both in terms of upfront research and subsequent commercialization costs - inventors must be permitted to extract at least part of the social gain associated with their technological contributions. Absent some form of proprietary control or alternative reward system, economics predicts that suboptimal capital will be devoted to the innovative process. This widely accepted principle comes with an important corollary: namely, that canons of patent law should accurately reflect the subject’s utilitarian foundation. The most important principle under this rubric is denying proprietary rights in “self-realizing” inventions - those for which sufficient incentives to invent and commercialize exist independent of the patent system. The law’s principal means of excluding such inevitable discoveries is through the non-obviousness doctrine. Yet that doctrine fails to achieve this task. Two classes of invention may be deemed “self-realizing” - inventions that are axiomatic (and useful) to those skilled in the art and innovations that provide utility to the relevant inventors because they consume the inventions themselves. While the non-obviousness doctrine excludes the former class of innovative activity, it utterly fails to eliminate the latter. This regrettable phenomenon results in social welfare losses and belies the policy foundation of the patent system. This particularly startling disconnect between theory and practice begs the question of whether we can do better. We conclude that the courts should turn to an often neglected but fundamental tenet of patent law: the patentable subject matter inquiry. In doing so, we identify a variety of “self-realizing” innovative activity but find that a well-crafted patent system must tolerate the inclusion of certain “inevitable” inventions. We conclude, however, that one sphere of innovation that can reliably be regarded as inevitable by a priori assumption involves non-public, or “internal,” business methods. Given free market competition, companies have ample incentives to develop internal business processes that reduce costs and/or increase consumer demand, even if these processes cannot be patented. And because these inventions are suitable for trade secret protection, inventors who seek patents on internal business methods presumably do so to raise rivals’ costs. Unfortunately, the patentable subject matter inquiry has thus far been wholly unsatisfactory in denying patent protection to undeserving processes. In late 2008, the Federal Circuit’s deficient “useful, concrete, and tangible result” test in State Street Bank was jettisoned in favor of a “machine-or-transformation” test in In re Bilski. While this new standard may limit the patentability of certain undeserving processes, it rests on a strained interpretation of Supreme Court precedent. More fundamentally, the logic employed bears scant relation to the utilitarian underpinning of the patent system, as enshrined in the Patent Act and the U.S. Constitution. The Supreme Court has now granted certiorari in Bilski. This Article calls for the Court to use this opportunity to reconcile the patentable subject matter inquiry with its utilitarian roots, particularly in the context of business method patents.

Risk Management in the Wake of Hurricanes and Other Disasters: Hospital Civil Liability Arising from the Use of Volunteer Health Professionals During Emergencies

Abstract: Hospitals using volunteer health professionals (VHPs) to provide surge capacity during emergencies may face many legal challenges, including civil liability under the doctrines of corporate negligence and vicarious liability. These two legal theories are particularly concerning for hospital entities because, unlike individual volunteers during emergencies, they may not enjoy special immunity or indemnification protections through emergency laws or other mechanisms for liability regarding the provision of medical care. Despite the potential for liability arising out of the use of VHPs, and the limited protections hospitals enjoy, hospitals may engage in several proactive strategies to effectively manage their risks. This article discusses three potentially effective strategies: (1) Planning and training to meet surge capacity. One of the most effective strategies to limit liability is to prevent the conditions from which it may attach. Hospitals that engage in advance planning to meet surge capacity in response to emergencies, and require existing (and potential volunteer) health personnel to be trained in the methods of delivering quality care in the context of emergencies via triage, are taking meaningful, responsible steps toward significantly reducing their liability during emergencies; (2) Implementing strict credentialing procedures. Volunteer registries like ESAR-VHP are designed to readily provide hospitals with access to available, pre-vetted VHPs for real-time responses to emergencies. This service is invaluable, but hospitals may also need to supplement these efforts through additional credentialing procedures designed to expeditiously validate the qualifications of VHPs specifically assigned to treat patients; and (3) Divesting responsibility for VHPs. Statutory and other legal mechanisms do not fully insulate hospitals from all types of liability related to the use of VHPs during emergencies. However, hospitals can divest some of their responsibility through affirmative steps including specific informed consent forms for patients and specialized agreements with VHPs, their host hospitals, or other entities. Collectively, these proactive measures not only help reduce the potential for significant liability of hospitals in the use of VHPs during emergencies, but they can also improve patient care by facilitating the deployment of essential medical personnel when and where they are most needed.

Analogical Legal Reasoning: Theory and Evidence

Abstract: The paper offers a formal model of analogical legal reasoning and takes the model to data. Under the model, the outcome of a new case is a weighted average of the outcomes of prior cases. The weights capture precedential influence and depend on fact similarity (distance in fact space) and precedential authority (position in the judicial hierarchy). The empirical analysis suggests that the model is a plausible model for the time series of U.S. maritime salvage cases. Moreover, the results evince that prior cases decided by inferior courts have less influence than prior cases decided by superior courts.

Inside Safe Assets

Abstract: “Safe assets” is a catch-all term for financial contracts that market participants treat as if they were risk-free. These may include government debt, AAA corporate debt, bank debt, and asset-backed securities, among others. The International Monetary Fund estimated potential safe assets at more than $114 trillion worldwide in 2011, over seven times the U.S. economic output that year.To treat any contract as if it were risk-free seems delusional after apparently super-safe public and private debt markets collapsed overnight. Nonetheless, financial crises have only raised the policy and academic profile of safe assets, invoked to explain global imbalances, shadow banking, and prolonged economic stagnation. The economic literature speaks of safe assets in terms of poorly understood natural forces or essential particles newly discovered in a super-collider. Law is virtually absent in this account.Our Article makes four contributions. First, we describe the legal architecture of safe assets. Existing theories do not explain where safe assets get their safety. Understanding how legal and regulatory tools help make, label, and guarantee safe assets is an essential first step to managing the risks they entail. Second, we offer a unified analytical framework that links the safe asset debate with post-crisis legal critiques of money, banking, structured finance and bankruptcy. Third, we highlight sources of instability in the legal architecture, and the political commitments embedded in it. Fourth, we offer preliminary prescriptions to address some of the failings we identify.Precisely because there are no risk-free contracts, state intervention supplies the essential infrastructure to let people act as if some contracts were risk-free. The law constructs and maintains safe asset fictions, and it places them at the foundation of institutions and markets. This project is unavoidably distributive and fraught with distortions.

Moral Heuristics or Moral Competence? Reflections on Sunstein

Abstract: In "Moral Heuristics," Behavioral and Brain Sciences 28(4), 531-573 (2005), Professor Cass Sunstein draws on recent scientific literature on heuristics in judgment and decision-making to argue that heuristics play a pervasive role in moral cognition and often lead to mistaken and even absurd moral judgments. In this commentary, I argue that by focusing on moral judgments he assumes are distorted or mistaken, Sunstein reverses the normal order of inquiry in the cognitive sciences, which seeks to understand the ideal operations of a cognitive system before attempting to explain its occasional pathologies or disorders. What Sunstein gives us, in effect, is a theory of performance errors without a corresponding theory of moral competence. Additionally, I argue that Sunstein's objections to thought experiments like the footbridge and trolley problems are unsound. Exotic and unfamiliar stimuli are used in theory construction throughout the cognitive sciences, and these problems enable us to uncover the implicit structure of widely shared moral intuitions.