Articles

Caremark and Enterprise Risk Management

I. Introduction. II. Enterprise Risk Management. A. Overview. B. Risk Management and the Financial Crisis of 2008-2009. III. Caremark and Progeny. IV. Do Enterprise Risk Management and Law Compliance Differ in Kind?. V. The Significant Differences in Degree. A. Risk Management is Still Evolving. B. The Benefits of Risk Management Programs are Inherently Less Certain. C. Risk Management and Risk Taking are Inextricably Intermingled. VI. Tweaking Caremark. A. An Utter Failure to Adopt Risk Ma...

Sanders v. Brown: State-Action Immunity and Judicial Protection of the Master Settlement Agreement

I. Introduction. II. Background. A. A Brief History of Tobacco Litigation. B. The MSA. 1. The Purpose and Provisions of the Agreement. 2. Litigation Spawned by the MSA. 3. Sanders v. Brown. III. Analysis. A. Deconstruction of Sanders v. Brown. 1. Federal Preemption. 2. First Prong of the Analysis. i. "Mandates or Authorizes Conduct". ii. "Irresistible Pressure". 3. Second Prong of the Analysis. i. Noerr-Pennington Immunity. ii. Parker Immunity. IV. Conclusion. V. Recommendations.

Enabling After-Arising Technology

I. Introduction. II. Enablement, Commensurability and AAT. A. The Doctrinal Chaos. B. Commensurability and the Incentive to Invent. C. Enablement Does Not Operate in Isolation. III. Discerning Order in (Or Imposing Order on?) the Chaos. A. Predictability as a Threshold Inquiry. B. Rule One: The Foreseeability Rule. C. Rule Two: The Identity Rule. D. Rule Three: The Complementarity Rule. 1. The Puzzle: Two Commensur ability Hypotheticals. 2. The Answer: A Safe Harbor for Complementary AAT....

Describing Patents as Real Options

I. Introduction. II. Current Literature on Patents as Real Options. A. Real Options Defined. B. Economics Scholarship on Patents as Real Options. C. Law Scholarship on Patents as Real Options. III. An Initial Step-Detailed Description of Patents as Real Options. A. A Patent's "Option Price". B.A Patent's "Exercise Price". C. A Patent's "Expiration Date". D. Value of Asset Underlying the Patent. E. Additional Complexity-A Patent as a Series of Embedded Options. IV. Benefits to Describing Pate...

Patent Holdup, Patent Remedies, and Antitrust Responses

I. Introduction. II. Three Principles. III. What Patent Holdup Is. A. Patent Holdup as a Type of Market Failure. B. Other Necessary Elements of Patent Holdup. IV. Patent Remedies. V. Antitrust Responses. A. Patent Ambush as an Antitrust Offense. B. Collective Bargaining as to Patent Terms and Conditions. VI. Conclusion.

From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law

I. Introduction: The Public Domain as a Subject Matter Problem. II. The Role of Balance. III. The Insufficiency of Balance. IV. The Misappropriation of Value and the Value of Authorship. V The Insufficiency of (Mere) Value. VI. The Poverty of the Public Domain as (Mere) Value. VII. Originality and the Work as a Communicative Act. VIII. Fair Dealing (or Fair Use) for the Purpose of Criticism as a Communicative Act. IX. The Purpose of Copyright and the Self-Constitutive Authority of Authorship....

Carte Blanche, Quanta, and Competition Policy

I. Intellectual Property as Competition Policy. II. Competition Policy Norms in the Courts. A. Four Competition Norms In Search of an Enforcer. B. The Federal Circuit and Supreme Court as Competition Norm Enforcers. C. Carte Blanche in Quanta. III. Quanta of Solace for Competition Policy. A. Alienation, Titling, and Competitive Markets. B. Exhaustion and Implied Licensing Exposed. 1. The Exhaustion Doctrine as a Mandatory Rule of Patent Licensing. 2. Implied Licensing as Default Rule of Pa...

A Tale of (At Least) Two Authors: Focusing Copyright Law on Process Over Product

I. Introduction. II. The Author in Copyright Law. III. Focusing on Process. IV. Practical Concerns. V. Conclusion.

Patents, Property, and Competition Policy

I. Introduction. II. Competition Policy and Patent Property: Boundaries and Priorities. A. Walker Process and the Boundary Problem. B. Uncertain Boundaries and Patent Lawsuit Settlements. C. Priorities, Standard Setting and Holdup. III. Competition Policy Under Clear Property Rights. IV. Who Benefits from Ambiguous or Overly Broad Patent Boundaries and Priorities?. V. Conclusion: Patent Failure, Interest Groups, and Competition Policy.

Antitrust and Patent Law as Component Parts of Innovation Policy

I. Patent Policy as Innovation Policy. II. Antitrust Policy as Innovation Policy. III. Patent and Antitrust Are Interdependent Parts of Innovation Policy. A. Comparing Patent and Antitrust Responses to Invalid Patents. 1. The Patent System's Response to Invalid Patents. a. Invalidity Defense. b. Declaratory Judgment Actions. 2. Antitrust's Response to Invalid Patents. a. Sham Patent Infringement Litigation. b. Agreements That Conceal Invalid Patents. B. Inequitable Conduct Versus a Walker P...

Photographs of Public Domain Paintings: How, If at All, Should We Protect Them?

I. Introduction. II. Using Copyright and Chattel Ownership to Control Images of Public Domain Paintings. III. What Protection, If Any, Is Appropriate for Art Reproduction Photos of Public Domain Paintings?. A. The Need for Incentives. B. The Need for Access. C. Reconciling the Competing Interests: A Sui Generis Approach. IV. International and Constitutional Constraints: Could Congress Adopt the Sui Generis Approach?. A. Sui Generis Protection as Copyright Law: International Constraints. B. ...

Relevant Markets for Copyrighted Works

I. Introduction. II. The Language of Markets. A. Antitrust Law. B. Copyright Law. III. The Relevance of Market Definition to Copyright Law. A. Tinkering with Fair Use. B. Rebuilding the Copyright Entitlement. IV. Conclusion.