Volume 2010, No. 6



The Rules and Standards of Patentable Subject Matter

By Tun-Jen Chiang

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 low administrative costs because the rules are clear. Conversely, a legal regime governed by standards will have high administrative costs because standards are vague, but their flexibility also allows for more precise and individualized outcomes. Patent law debates have ignored this broader jurisprudential understanding and treat patentable-subjectmatter doctrine as defying these fundamental trade offs. According to its critics, patentable-subject-matter doctrine is over-inclusive and hopelessly vague at the same time. The critics then argue that patentable-subject-matter requirements, having no redeeming virtues, should be abolished or dramatically narrowed.

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

By 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 against securities issuers and their executives. Extending prior work, the author demonstrates the utility of contextual factors in an assessment of an individual corporate actor’s recklessness at the crucial pleading stage. The proposed rubric—based on magnitude, atypicality, and timing of the information misrepresented—is informed by recent Supreme Court pronouncements on scienter, by established 10(b) case law attempting to define recklessness as a level of intent producing fraud, and by the Third Restatement’s recent adoption of a fundamentally objective approach to recklessness in tort law more generally.

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

By Drew Coursin

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 graduates and find them lacking. The traditional assumption that good law students make good lawyers has crumbled. The blame for students’ inability to demonstrate essential lawyering skills falls squarely on law schools’ shoulders. Calls for reform in legal education span more than thirty years, from the ABA’s Cramton and MacCrate Reports, to the 2007 Carnegie Foundation’s effort to spur change. Although some forward-thinking educators have moved away from traditional methods, most law schools maintain a “business as usual” attitude. Legal education remains a lumbering behemoth of theory and outmoded pedagogy. Employers need capable lawyers, students need skills, and neither group can succeed in a grim economy unless legal education changes. The solution lies in action. Teaching law students to act like lawyers requires a significant shift in focus. This Comment describes the necessity and feasibility of reform, explores the evolution of legal education, and then turns to medical education for a novel framework for teaching legal skills. Finally, this Comment introduces one version of an adaptable, practical, skills-based legal rotations model, which law schools may use as a template for future innovation.

Involuntary Servants: The NCAA’s Abridgement of Student-Athletes’ Economic Rights in Perpetuity Violates the Thirteenth Amendment

By 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 unpaid student-athletes. Unforgivingly, the NCAA has extended this relationship in perpetuity by forcing student-athletes to sign away their NCAA-image rights for their entire lives.

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

By Vanessa Wishart

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 effectiveness of NFMA’s multiple-use mandate depends on the promulgation of clear regulations to guide its implementation. Recent attempts at regulatory reform have significantly relaxed requirements for forest management, specifically through categorical exclusions for environmental analysis under the National Environmental Policy Act (NEPA). Coupled with strict interpretation of what constitutes a cumulative impact, lax NEPA analysis for Forest Plans could result in reduced protection of our National Forests.

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.