Showing papers in "The San Diego law review in 2015"

Brown, Fisher, and the Necessity of Context to Achieve Racial Equity in Public Institutions

Abstract: AND INSTITUTIONAL RACISM, AND WHITE PRIVILEGE...............................915 A. Structural Racism ..........................................................................916 B. Institutional Racism .......................................................................917 C. White Privilege ..............................................................................920 III. BROWN: EDUCATIONAL ACCESS, OPPORTUNITY, AND RACIAL EQUITY .......................................................................................924 IV. FISHER AND CONNECTING DIVERSITY TO A COMPELLING GOVERNMENT INTEREST: RACIAL EQUITY IN PUBLIC INSTITUTIONS ..........................................................................................926 A. The Fisher Admissions Policy ........................................................926 B. Justices Scalia and Thomas’ Fisher Concurrences: The Attack on Racial Considerations in Admissions Decisions .......................................................................................928 V. A WAY FORWARD: THE VALUE PROPOSITION FOR THE CONSIDERATION OF RACE IN PUBLIC EDUCATION.....................................930

Is Law a Technical Language

Abstract: This essay, the written version of the Nathanson Lecture at the University of San Diego, asks how much of legal language is ordinary language, and how much of it is technical language. The topic is important and pervasive, because it forces us to confront the question of how much, if at all, an interpreter of legal language should take account of the goals of particular laws and the goals of the legal system generally in deciding just what a law means. To the extent that legal language is ordinary language, it is possible for an interpreter at the first stage of interpretation to decide what that language simply means, and then at a subsequent stage (as proponents of the distinction between interpretation and construction maintain) to decide what a legal outcome ought to be. But if legal language is a technical language, then the interpretation-construction distinction collapses, and right from the beginning, as Lon Fuller most prominently insisted, the interpreter must consider just what laws in particular and law in general are aimed at achieving. So although it is obvious that certain terms are constituted by law – habeas corpus, assumpsit, corporation, trust, bill of attainder – the larger question is whether all of law and all of legal language should be understood in substantially the same way. The aim of this lecture is to open up the question of legal language as technical language for broader and deeper exploration, and to suggest that resolution of the ordinary language versus technical language question reaches into almost all of the domains of legal interpretation.

An Agency Theoretical Approach To Corporate Board Diversity

Abstract: The available evidence indicates that the existing legal regimes for increasing gender diversity on corporate boards in the United States and Australia are ill-suited to their objectives and are unlikely to yield a significant upward change within a reasonable time-frame. Therefore, we posit a normative model for increasing women’s representation on corporate boards based upon a comparative study of several jurisdictions. The model is tightly restricted to the goals of corporate governance and unpacks distinctions between the traditional justifications advanced in the literature.

Do Free Mobile Apps Harm Consumers

Abstract: Google distributes proprietary applications for its open-source Android mobile operating system (OS) free of charge. Some of those applications (apps) are offered together as a suite of apps known as Google Mobile Services (GMS). Manufacturers of mobile devices can agree, pursuant to Google’s Mobile Application Distribution Agreement (MADA), to install the suite of apps on their devices at a price of zero. Some theorize that Google’s policy of offering some applications together as a suite of apps harms competitors or menaces consumer welfare. In April 2015, the European Commission expressed such concerns when it initiated a formal antitrust investigation that will scrutinize Google’s licensing practice with respect to Android, mobile apps, and mobile services. In April 2014, an antitrust class-action complaint filed against Google by individual mobile device owners in the U.S. District Court for the Northern District of California presented similar allegations. However, the theory that the MADA’s requirements have anticompetitive effects is wrong. As a matter of economics, Google’s practice of distributing free mobile apps in the GMS suite benefits consumers (as well as manufacturers, mobile carriers, app developers, and advertisers) by stimulating demand, by reducing the risk of fragmentation of the Android OS, and by preventing Google’s competitors from free riding on its investment to make the Android OS and mobile apps a viable open-source competitor to closed and proprietary — “walled garden” — platforms for mobile devices. As a matter of antitrust law, Google’s distribution of apps as part of a larger whole — GMS — is lawful under the Supreme Court’s four-part test for such arrangements. Google does not force consumers to pay for apps they do not want, and the MADA’s requirements enhance competition overall. The same conclusion holds with even greater certainty under the rule-of-reason analysis for software integration that the D.C. Circuit adopted in its historic Microsoft decision. Although European competition law differs in some respects from American antitrust law, the pertinent economic analysis does not vary by jurisdiction. Google’s licensing practice has invigorated competition among mobile platforms and mobile devices. Google’s distribution of free mobile apps in GMS has produced a market success, not a market failure, and should not be considered anticompetitive.

Matched Preferences and Values: A New Approach to Selecting Legal Surrogates

Abstract: Every day, hospitals are filled with incapacitated patients whose healthcare decisions are made by other people. The law recognizes such decisions as the patients’ own and, accordingly, the primary purpose of surrogate decisionmakers is to make the decisions that patients would make if able. Unfortunately, surrogate decisionmakers frequently make choices for patients that are inconsistent with patient wishes. Indeed, social psychology literature on surrogate decisionmaking finds a stronger correlation between surrogates’ decisions for patients and what surrogates would want for themselves than between surrogates’ decisions and what patients actually would want. Although others have treated surrogates’ tendency to project their own preferences and values on patients as a barrier to appropriate decisionmaking, this Article shows how savvy patients, advocates, and policymakers can capitalize on this tendency to improve healthcare decisionmaking. Specifically, it proposes that surrogate decisionmakers for health care be selected based, at least in part, on the extent to which they share patients’ treatment preferences. Where it is not possible to compare treatment preferences, or where an individual cares less about particular treatment decisions than about consistency with a set of values, surrogates should be selected based on shared values. Incorporating this approach into advance planning processes and the statutory law governing the selection of guardians and default surrogate decisionmakers could both increase the likelihood that decisions made are those patients would want made, and facilitate more flexible, context-appropriate treatment decisions.

The Rule of Reason and the Scope of the Patent

Abstract: For a century and a half the Supreme Court has described perceived patent abuses as conduct that reaches "beyond the scope of the patent." That phrase, which evokes an image of boundary lines in real property, has been applied to both government and private activity and has many different meanings. It has been used offensively to conclude that certain patent uses are unlawful because they extend beyond the scope of the patent. It is also used defensively to characterize activities as lawful if they do not extend beyond the patent's scope. In the first half of the twentieth century the phrase was imported from patent law into antitrust law, where it continues to be used to assess license agreements or other arrangements involving patents, as well as settlements of patent infringement cases.While the "scope of the patent" metaphor might remain useful for assessing conduct thought to be inconsistent with patent law, it is generally not a helpful antitrust tool. Offensive antitrust use of the scope of the patent test often identified practices as anticompetitive when they were in fact competitively harmless. By contrast, defensive antitrust use of the scope of the patent formulation creates a patent silo that protects collusion or anticompetitive exclusion from antitrust scrutiny. The result limits adversity between a patentee and potential licensee or infringer, producing a socially costly collusive equilibrium that benefits the parties but harms consumers.A pervasive problem of the scope of the patent test is that it confuses patent value with product value. For example, both product price fixing and product market division agreements contained in patent licenses have been found to fall within the scope of the patent. If the price fix or market division lasts no longer than the duration of the patent, then it is no more harmful to customers than a patentee's simple solo production under its patent.Recognizing this, several courts have concluded that product price fixes should be unlawful under the antitrust laws only if the patents involved are likely to be invalid, making the patent license nothing more than a cover for collusion. The important question is not patent validity, however, but rather patent value. Many perfectly valid patents have little value because they add little to a licensee's technology, or alternative patents or technological routes exist that serve the same purpose. Further, this phenomenon is ubiquitous. Cartel markups in industries prone to collusion run in the range of 20% to 50% over the pre-cartel price. By contrast, average royalty rates on licensed patents average around 3%, and this value is much larger than the value of the great majority of patents that are never licensed. The real problem of product restraints in patent licenses is that they are attempts to attribute the full product cartel markup to the patents being licensed. Only a tiny percentage of patents do anything like that. A better rule for identifying the boundaries of antitrust liability than the scope of the patent formulation permits antitrust intervention in the case of post-issuance patent conduct that is not explicitly authorized by the Patent Act. Of course, only a relatively small proportion of such conduct will actually violate the antitrust laws. With immunity off the table, however, assessing the competitive and innovation effects of challenged practices involves questions of antitrust law, not of patent law. Seen this way, certain questions such as a pioneer patentee's agreement to refrain from entering the market with an authorized generic become fairly easy. Such agreements are nothing more than cartel arrangements under which a firm agrees to make another firm's production more profitable by restraining its own output. Under the scope of the patent test as the Actavis dissenters would have applied it the equilibrium period of delay is up to the expiration date of the patent. In that case, however, the agreement never involves a license at all. During the life of the patent the generic firm produces nothing, and once the patent expires it no longer needs a license.Outside of damages measurement, patent law has no tool kit for assessing either the market or even the innovation effects of a particular practice. While that criticism may seem harsh, the reality is that patent law has developed in relative isolation from any significant inquiry into how patents function in the marketplace. The result gives antitrust policy a comparative advantage, not only for assessing competition effects but ironically, even for assessing innovation effects.

Revising International Law: A Liberal Account of Natural Resources

Abstract: I. THE STATE AS OWNER: THE RULE OF PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES ........................................... 1124 A. What are Natural Resources? ...................................................... 1127 B. Who is the Right-Holder under the Rule? .................................... 1130 II. AN INDIVIDUALIST THEORY OF NATURAL RESOURCES: THE SOCIAL CONTRACT ......................................................................... 1135 III. WHY THE RIGHT OF PROPERTY IS A NATURAL RIGHT ............................. 1137 IV. FIRST-ORDER SUBSTANTIVE RIGHTS AND SECOND-ORDER ENFORCEMENT RIGHTS .......................................................................... 1139 V. THE PROBLEM OF KLEPTOCRACIES ......................................................... 1141 VI. IMPLICATIONS FOR TRADE...................................................................... 1143

High-Speed Trading on Stock and Commodity Markets - From Courier Pigeons to Computers

Abstract: A growing concern in the stock and commodity markets over the last several years has been the rise of high-frequency traders (HFTs). Those traders employ high-speed computer technology for the algorithmic origination, transmission and execution of their orders through fiber optic cables and micro wave towers. That technology allows HFT orders to be executed in times measured in fractions of a second. As a result of this technological advance, HFTs are now dominating trading volumes. This phenomenon has, on the one hand, led to claims by proponents of high-speed trading that HFTs are an important source of market liquidity and should not be subject to burdensome regulation. Critics of HFTs, on the other hand, are claiming that high speed trading is abusive and disruptive for other traders. Those critics also claim that HFTs use their high-speed advantage to trade in advance of other customers and that HFTs should be regulated in a manner that will remove their advantages. This article will show that concern over informational advantages of traders through “high speed” communications is not a new 1 Professor of Law, Florida International University College of Law at Miami. 2 Henry Crosby, Speculation on the Stock and Produce Exchanges of the United States, Vol. VII, Studies in History, Economics and Public Law, 117 (1896) (footnotes omitted).

Deliberate Destitution as Deterrent: Withholding the Right to Work and Undermining Asylum Protection

Abstract: For the vast majority of vulnerable asylum seekers, work holds the key to economic survival, as federal law precludes them from accessing nearly any social benefits. However, United States immigration law bars them from accessing employment for at least six months, and often for years. In this piece, I examine this prohibition on employment for asylum seekers on a number of fronts. Beginning with a historical perspective, I explore the more humane regime that existed in the United States until 1995. Under this prior system, asylum seekers with bona fide claims were permitted to work while their claims proceeded. I examine the underlying fears and policy goals that led Congress to dramatically curtail protection and the right to work for asylum seekers. By situating the prohibition on work for asylum seekers within the larger context of overall punitive immigration reforms and the increasing criminalization of immigration law, I argue that the ban on employment for asylum seekers is unnecessary as a means to deter fraud. It is also inconsistent with other humanitarian immigration relief that exists in United States immigration law. Turning to the Refugee Convention itself, denying refugees seeking asylum the right to work violates the spirit of the Refugee Convention and the very right to seek asylum. Moreover, denying a means of support and attempting to make life so difficult that asylum seekers choose to return home to persecution rather than seek protection amounts to constructive nonrefoulement in violation of the Refugee Convention. Finally, from a policy perspective, allowing asylum seekers to work while their claims proceed would restore dignity to refugees and realign U.S. immigration policy with important international law norms. It would also be consistent with domestic immigration policy for other classes of similarly situated vulnerable immigrants. Additionally, in light of the heightened enforcement efforts and more restrictive immigration regime which now exists in the United States, it is unlikely that the number of fraudulent asylum applications filed would significantly increase.

A Generation of Patent Litigation

Abstract: This study compares twenty-five years of litigation and patents of the ten most litigious NPEs (as of 2009) with a random group of cases and patents in the same yearly proportions. All cases involving every patent was gathered, allowing the life cycle of each asserted patent to be studied. The data includes litigation data, patent data, reexaminations, and other relevant data. This paper considers outcomes and patent quality. A future paper will examine innovation and markets.Unsurprisingly, the data shows that the studied NPE patents were found invalid and noninfringed about twice as often as the comparable nonNPEs. But there is more to the story. First, summary judgment challenges were denied at about the same rate. Second, most cases never tested the patent at all: the invalidations were bunched into 3% of the cases. Third, about 17% of the NPE cases involved a patent that was later invalidated, as compared to 3% for the nonNPEs. This left 75% of NPE cases with patents that were never tested and did not involve a patent invalidated at any time (as compared to 90% of nonNPE cases). Thus, one’s view of the data will depend on views about motivations in asserting patents that wind up invalid later and the merits of settlements. The paper presents data about settlements, consent judgments, defaults, and the like, but ultimately takes no position on the quality of untested patents.Other major findings include: 1. NPE cases are shorter duration than nonNPE cases, even though they are transferred and consolidated more often. Even with transferred cases, NPE cases are shorter. 2. A patent’s likelihood of being invalidated has almost nothing to do with objectively observable patent metrics – including reexamination data. Instead, the odds of invalidation are driven by those cases that are more likely to have a challenge, like the number of defendants or number of patents in the case. Once variables that indicate challenges are considered, a party's status as NPE added no explanatory power. 3. One patent metric was statistically significant in predicting invalidation: backward citations, or the number of prior patents that a patent refers to. But the sign was surprising: the more citations in the patent, the more likely it was found invalid. This may mean that backward citations are another selection variable – patents citing many other patents may be more likely to be highly controversial and thus challenged. This finding implies, however, that “gold plating” patents may not be as beneficial as first thought.