Volume 2019, No. 5

PDF link Table of Contents


PDF link Patent Law’s Philosophical Fault Line

by Matthew G. Sipe

Under the conventional view, utilitarian theory has come to dominate patent law. Patents are viewed as the incentive we offer for innovation, from which all of society ultimately benefits, despite short-term monopoly costs. Patent doctrines are, in turn, assessed against the goals of optimizing that incentive and reducing those costs. On the other side, a minority of embattled jurists and scholars defend the relevance of freestanding moral principles, such as desert, autonomy, or justice, and argue for their reincorporation into contemporary patent doctrine and policy. This Article challenges the conventional terms of this debate by offering a unique reframing: a resilient thread of moral principles does remain woven into patent law, but largely only in one half of the tapestry. Whereas utilitarian theories generally do an excellent job of explaining modern patent validity law, many of the core doctrines in patent infringement law are heavily influenced by broad moral principles—and sometimes even hostile to a traditional economic approach.

PDF link Promising Justice: Contract (As) Social Responsibility

by Jonathan C. Lipson

Contracts in a variety of contexts—from multinational supply chain agreements to movie-production deals—increasingly include promises on such “social responsibility” matters as human trafficking, environmental sustainability, and socio-demographic diversity. These terms literally promise justice.

Can they deliver?

This paper makes three claims about the use of contract to achieve social responsibility (which I abbreviate “KSR”). First, KSR can be seen as a response to “vertical deconstruction,” the erosion of intra-firm and social orders that historically generated and transmitted non-commercial social norms. Second, as such, KSR terms will be legally un(der)-enforceable: Like better-studied relational contracts, KSR will blend enforceable and unenforceable terms to achieve governance, risk-sharing, and educative goals. Third, although KSR may be more effective than more popular mechanisms, in particular corporate social responsibility, KSR is not a panacea, and presents risks of cooptation and fragmentation often associated with soft-law regimes.

PDF link Contemptuous Tax Reporting

by Israel Klein

The use of self-reporting and self-assessment principles in the collection of corporate income tax means that companies are not subject to administrative tax assessment and ex-ante examination of tax positions taken, but rather to infrequent ex-post examination of tax returns submitted by their managers. Thus, while acting as the government’s agents for the purpose of assessing corporate taxes, managers can engage in contemptuous self-reporting that involves knowingly reporting tax positions that do not conform to the tax code and prevailing tax doctrines.

PDF link Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions

by Keith A. Findley et al.

Few medico-legal matters have generated as much controversy—both in the medical literature and in the courtroom—as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in which medical opinion claims to fully occupy the legal field. As controversies flare up increasingly in the legal arena, child abuse pediatricians and prosecutors now respond by claiming both that there is actually no real controversy about SBS/AHT, and that it is a purely medical “diagnosis” and not a legal conclusion, so testimony in support of the SBS hypothesis should not be challenged in court. This article, coauthored by four law professors, two physicians, and a physicist, demonstrates that there is very much a live controversy about the SBS/AHT hypothesis and maintains that, under traditional principles of evidence law, physicians should not be permitted to “diagnose” abuse in court (as opposed to identifying specific symptoms or medical findings).


PDF link Dairy Farms and H-2A Harms: How Present Immigration Policy is Hurting Wisconsin and Immigrant Workers

by Julia Jagow

The Wisconsin Dairy Industry is in a sour situation because it lacks a sufficient legal workforce. Since the advent of new milking technology, a push for industrialization, and the regulation of milk prices, the number of farms in America’s Dairyland has fallen, but their size has dramatically increased. Simultaneously, a shadow market of undocumented dairy workers emerged in Wisconsin, as farmers were desperate to fill positions in their milking parlors. Farmers in other agricultural sectors facing domestic labor shortages have the option of employing foreign workers through the H-2A agricultural guest worker program to fill their labor needs. However, this option is unavailable to dairy farmers, rendering them with no sustainable legal options for hiring foreign workers to meet labor demands. Additionally, even if dairy farmers could hire H-2A foreign workers, the current H-2A program features serious flaws including rampant worker exploitation, high cost, and an unwieldy application process.

PDF link Damning the Mekong: Project Finance’s Inability to Cure the Steep Costs of Hydropower Development in the Mekong River Basin

by Brian P. Cawley

Project finance is a system of financing employed to fund large infrastructure facilities, and it has been a driving force of investment in undeveloped countries. While project finance’s capacity to facilitate high levels of investment is facially appealing, its implementation and management illustrate an alarming accountability problem. Project finance’s dispersal of risk has created a glaring accountability gap that allows project participants to systematically thrust environmental and social harms upon local communities. Moreover, because infrastructure development often occurs in undeveloped countries, host governments and third parties are often disinterested or incapable of stepping in to mitigate those harms.