The Fiduciary Code of Capital and Climate Change

Fiduciary law is part of the “code” for the management of capital, as Katharina Pistor has conceptualized law. Climate activists, attorneys, investors, and international organisations have turned to fiduciary law for legal solutions to the ongoing problem of inadequate corporate and state action in response to climate change. Our thesis is that the turn to fiduciary law by norm entrepreneurs is an attempt to encode a concern for climate change within the management of capital. We make two contributions to the literature on private law and climate change. First, we rigorously identify the features of fiduciary law that make it a vehicle for targeting the relatively small number of “superagents” (states, state-owned enterprises, and transnational private firms) that are primarily responsible for climate change. Second, we identify the barriers to successful use of fiduciary law to encode climate risks into the management of capital, which we call the sword and shield problem, the legitimacy trap, and the interface problem. To test our theory, we contrast developments in the U.S. and EU and in so doing shed light on debates about Environmental, Social, and Governance (ESG) initiatives, corporate responsibility, and state responses to climate advocacy

Duality in Contract and Tort

We study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort

Asking the Right Questions About Legal Finance in United States Aggregate Dispute Resolution

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance in the U.S. civil justice system, particularly for resolving aggregate disputes? Addressing this foundational question requires nuanced and in-depth analysis of the intersection between this new legal finance industry and the dynamics of the United States aggregate litigation landscape. This work is needed now: the outcry against litigation finance, aggregate litigation, and the prospect of the two combined has captured the attention of federal and state legislatures, judges, and rule-makers across the United States. With a few notable exceptions, though, input from complex litigation scholars has been scant. The nascency of the scholarship stands in stark contrast to the often fever-pitched calls for reform. This Article steps into the breach. Its analysis integrates our developing understanding of the third-party litigation finance industry with well-developed knowledge about the U.S. aggregate litigation landscape. This Article’s analysis reveals that many of the questions currently being debated most often might be misdirected, and it elucidates the “right” questions about third-party litigation finance in United States aggregate dispute resolution, which will help point scholars, lawmakers, and judges in the right direction

Just Research and Citation

Contemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey to link rot. Yet many scholars and students still misunderstand citation practices as “just” research and citation—as in merely sourcing—and unknowingly perpetuate biased research practices. While resisting the “status quote” is imperative for many of these scholars, they simply haven’t been trained in just research and citation methods. This Essay provides a framework for that training. Given how much legal research and citation is digital, that framework is grounded in feminist cyberlaw, a growing global movement that views through a feminist lens the influence of gender, race, sexuality disability, and class on cyberspace and the laws that govern it. Coupled with foundational methods, like Critical Legal Research and Critical Legal Information Literacy, this Essay examines why adopting and adapting critical methods with a feminist cyberlaw approach can help scholars align their work with the feminist cyberlaw values of safety, equity, and accessibility. Those values help scholars escape data cartels, engage marginalized scholars, embrace free and public resources, and ensure that those resources remain easily available—collectively promoting “just” research and citation, as in justice. Taken as a whole, this Essay provides practical tools for feminist cyberlawyers seeking to pursue just research and citation

Does the Original Meaning of the Fourteenth Amendment Protect Economic Liberty?

In my remarks today, I will defend the proposition that the original meaning of the Fourteenth Amendment protects economic liberty. To clarify the issue, let me being by defining economic liberty. I define economic liberty as the right to acquire, use and possess private property and the right to enter into private contracts of one\u27s choosing. If these rights are protected by the original meaning of the Fourteenth Amendment, then we can conclude that the Amendment does protect economic liberty. In my view, the evidence that the original meaning Fourteenth Amendment protects rights of private property and contract is overwhelming. But to say that the Amendment protects the rights of property and contract is not to say exactly how these rights are to be protected. I will return to that important topic after I discuss what the original meaning of the Fourteenth Amendment protects

Legal Issues and Outcomes of a Medical-Legal Partnership for Cancer Patients

The medical-legal partnership (MLP) model is a multidisciplinary intervention with demonstrated success in addressing health-harming legal needs. We analyzed initial data from the Georgetown University Health Justice Alliance’s Cancer Legal Assistance and Well-being Project (Cancer LAW), an MLP between Georgetown University and MedStar Health serving cancer patients receiving care at an urban, safety-net hospital in Washington, D.C. The sample included 81 patients, who had an average of two legal issues, most commonly in the areas of Social Security, estate planning, housing, and health insurance. Data collected during legal representation captured both financial and non-financial benefits to patients. Patients who responded to a post-legal services survey reported reduced stress, and nearly 75% of survey respondents reported that legal services helped them maintain their treatment regimen. Further research, including on the impact of legal services on health outcomes, may be helpful in efforts to incorporate legal services as an accepted best practice in cancer care

Revisiting Patent Linkage

Alfred Engelberg’s article of a quarter-century ago, Special Patent Provisions for Pharmaceuticals: Have They Outlived Their Usefulness?, raised a provocative question that retains currency today. The special provisions that Hatch-Waxman established, and Engelberg addressed, have come to be known as patent linkage. Following the principle of linkage, the Food and Drug Administration (FDA) cannot approve generic drugs for marketing if they would infringe a patent. Hatch-Waxman’s complex patent provisions aspire towards multiple salutary purposes, including encouraging the prompt availability of generic drugs, improving public notice of pharmaceutical patents, and accelerating dispute resolution proceedings. Congress also attempted to ameliorate perceived patent term distortions introduced by the interaction of drugmakers with the administrative state, and to ensure that the FDA and U.S. Patent and Trademark Office speak consistently as to whether generic drugs may be sold or not. Yet, as Engelberg suggested, patent linkage is largely unnecessary. Those provisions that supplement garden variety patent provisions could achieve their policy objectives through alternate measures at lower cost. Merely providing public notice that a generic manufacturer seeks FDA approval to market during the term of the originator’s patent would do essentially all the work linkage sets out to accomplish. This analysis suggests that the success of Hatch-Waxman’s patent provisions is not because they were innovative—as they were not—but rather because they are mandatory. And although largely confirmatory of established patent rights, Hatch-Waxman’s linkage provisions are not simply harmless. They have instead raised persistent concerns in view of their compliance burdens, complexity, and likely unintended consequences. This analysis also suggests that linkage concepts, when adopted abroad, should call for the public notice of applications for generic marketing approval rather than more elaborate mechanisms

Patent Infringement in Time

No patent lasts forever. When intellectual property rights expire, a canonical principle states, all benefits of their ownership cease. But patents may cast a long shadow after they are gone, hindering the advent of immediate competition upon their expiration. The law acts unevenly in these circumstances, leading to questionable intellectual property and public health policies. Ordinarily competitors cannot make and use a patented invention until the patent\u27s term has concluded. This delay ordinarily extends the effective period of exclusivity that the patentee enjoys. However, a statutory safe harbor shields from infringement acts undertaken solely for uses reasonably related to Food and Drug Administration (FDA) approval efforts. Congress intended the safe harbor, the only practically operative exception to patent rights ever enacted, to promote immediate generic availability upon the conclusion of patent term. Ordinarily competitors cannot make and use a patented invention until the patent’s term has concluded. This delay ordinarily extends the effective period of exclusivity that the patentee enjoys. However, a statutory safe harbor shields from infringement acts undertaken “solely for uses reasonably related” to Food and Drug Administration (FDA) approval efforts. Congress intended the safe harbor, the only practically operative exception to patent rights ever enacted, to promote immediate generic availability upon the conclusion of patent term. Courts construe the safe harbor to exempt from infringement a wide range of activities. Current rulings allow manufacturers to use drugs or devices pa-tented by others for as many non-regulatory uses as they wish, for as long as they desire, and even if the FDA is never informed of them, so long as the court concludes that the infringing act bore a perceptible relation to the FDA approval process. So conceived, the safe harbor creates a paradox. It too often defers patent litigation and the public benefits that result from it, including judicial rulings that clarify patent boundaries and invalidate weak patents. Intended to promote the rapid approval and distribution of generic drugs, an expansive safe harbor instead promotes delay and uncertainty. This Article calls for a reframing of the safe harbor, not as a windfall for generic manufacturers, but rather as a mechanism intended to promote public health. Analysis of the safe harbor provides additional insights into the temporal dimension of patent infringement. Agencies other than the FDA entertain regulatory aspirations but face patent conflicts. Extended lead times for product development also diminish the prospects for prompt market entry by competitors after patent expiry. Other specialized rules for pharmaceutical patent law that delay patent litigation should be reconsidered. Finally, this Article calls into question infringement suits brought by owners of expired patents

The New History Of Multi-Member Commissions At The Founding, 1789-1840

The executive removal power figures prominently on the Supreme Court\u27s current agenda. That agenda is beset, however, by a historical misunderstanding, when it comes to multi-member bodies, which too often are assumed to be modern creatures. This paper provides crucial new historical evidence showing that the Founders, indeed a who\u27s who list of Founders, approved and even sat on administrative commissions in the Republic\u27s early years. The Founders called these early commissions independent, deferred to their judgments as final, and demanded that the members be impartial. Nothing in this paper contravenes the current position of the Supreme Court that Presidents may remove executive officers at will. It does suggest, however, that as the Court considers Presidents and multi-member commissions, that it should remember that Presidents and Congresses, in the early Republic, endorsed such bodies precisely because Presidents and Congresses believed that, for some tasks, political partisanship was a danger to the administration of the rule of law, and to the nation\u27s most urgent needs

What Might Contract Theory Be?

Few contract theories begin with so comprehensive a discussion of method as does Stephen Smith’s book, Contract Theory. In the first chapter, “What Is Contract Theory,” Smith describes an interpretive approach guided by four goals: fit with the existing law, internal coherence, moral attractiveness, and transparency to legal actors. This chapter in Understanding Private Law: Essays in Honour of Stephen A. Smith, does a deep dive into Smith’s description and defense of those goals. Smith pictures the contract theorist as an observer standing outside legal practice, interpreting the law but not participating in it. That picture results in some gaps and tensions within Smith’s methodological argument. An understanding of the contract theorist as participant in the project of constructing a just, efficient, socially beneficial law of contracts better grounds an interpretive theory of contract law and suggests recasting the four goals Smith identifies. This is not so much a rejection of Smith’s approach as a suggested reorientation of his interpretive project