Modifying RAND Commitments to Better Price Patents in the Standards Setting Context

This Article addresses a single problem: how can we allow engineers and scientists from different institutions to collaborate to set the best technical standards possible, not considering intellectual property (“IP”) rights, and then establish the royalty rates for each patent owner after the standard is set? The current system attempting to solve this problem requires patent owner participants to sign a Reasonable and Non-Discriminatory (“RAND”) commitment. These RAND commitments require the participants to agree an ante, i.e., before the standard is actually set, to license whatever patent rights they may ultimately have in the standard on terms that are reasonable and non-discriminatory. However, RAND commitments do not elaborate on what it means for a license to be reasonable and non-discriminatory, or how the reasonableness determination is different from the non-discriminatory determination. Too often rent seeking patent owners cannot agree on how to split the royalty payments and end up in court. Nastiness ensues. Through the current Georgia Pacific fifteen factor balancing test for determining whether a licensing agreement (or lack thereof) satisfies the RAND commitment, court decisions are almost as unpredictable as if the RAND commitment was not in place. As such, over the past decade, a number of more predictable methods for courts to use to split royalty profits in RAND commitments have been suggested. This Article is not concerned with analyzing which alternative system should replace the current system, however. Using any of three alternative methods for interpreting RAND commitments discussed in this Article would be better than the current system. Thus, this Article differs from others in the literature because it addresses the standards setting problem from a procedural standpoint. Because RAND commitments do not elaborate as to their meaning at all, I recommend RAND commitments elaborate by telling courts what RAND commitments do not mean. By adding a clause strictly rejecting the Georgia Pacific test in RAND commitments, courts would be free to use any new test they find fit and would be more inclined to strike down the Georgia Pacific factors test in the standards setting context

Economic Theory Lost in Translation: Will Behavioral Economics Reshape the Compelled Commercial Speech Doctrine

This Article consolidates the economic and legal theory needed to properly analyze the impact of salience measures on the commercial speech doctrine. By walking through various First Amendment scenarios, this Article describes and differentiates between the two main governmental interests motivating graphic image requirements on cigarette labels: reducing smoking and informing consumers. The Article then sets up a game-theoretic model of the compelled commercial speech doctrine and uses Bayesian inference to make assumptions about how the Supreme Court would rule if it eventually rules on similar graphic images placed on cigarette labels. Solving the model by way of forward induction yields the prediction that the constitutionality of the graphic image requirements will depend on whether the images are ideologically neutral

Modifying RAND Commitments to Better Price Patents in the Standards Setting Context

This Article addresses a single problem: how can we allow engineers and scientists from different institutions to collaborate to set the best technical standards possible, not considering intellectual property (“IP”) rights, and then establish the royalty rates for each patent owner after the standard is set? The current system attempting to solve this problem requires patent owner participants to sign a Reasonable and Non-Discriminatory (“RAND”) commitment. These RAND commitments require the participants to agree an ante, i.e., before the standard is actually set, to license whatever patent rights they may ultimately have in the standard on terms that are reasonable and non-discriminatory. However, RAND commitments do not elaborate on what it means for a license to be reasonable and non-discriminatory, or how the reasonableness determination is different from the non-discriminatory determination. Too often rent seeking patent owners cannot agree on how to split the royalty payments and end up in court. Nastiness ensues. Through the current Georgia Pacific fifteen factor balancing test for determining whether a licensing agreement (or lack thereof) satisfies the RAND commitment, court decisions are almost as unpredictable as if the RAND commitment was not in place. As such, over the past decade, a number of more predictable methods for courts to use to split royalty profits in RAND commitments have been suggested. This Article is not concerned with analyzing which alternative system should replace the current system, however. Using any of three alternative methods for interpreting RAND commitments discussed in this Article would be better than the current system. Thus, this Article differs from others in the literature because it addresses the standards setting problem from a procedural standpoint. Because RAND commitments do not elaborate as to their meaning at all, I recommend RAND commitments elaborate by telling courts what RAND commitments do not mean. By adding a clause strictly rejecting the Georgia Pacific test in RAND commitments, courts would be free to use any new test they find fit and would be more inclined to strike down the Georgia Pacific factors test in the standards setting contex

The Economics of Healthcare Rationing

This article examines the economics of healthcare rationing. We begin with an overview of the various dimensions across which healthcare rationing operates, or at least has the potential to operate, in the first place. We then describe the types of economic analyses used in healthcare rationing decision-making, with particular reference to cost-benefit analysis and cost-effectiveness analysis. We also discuss healthcare rationing in practice, such as how economic analyses inform decisions regarding which services to cover, and conclude by discussing various practical and conceptual challenges that may arise with economic analyses and that span both economics and ethics

Judicial Conflicts and Voting Agreement: Evidence from Interruptions at Oral Argument

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a breakdown in the voting coalition is one possible explanation of the finding, it is not the only one. An interruption by one justice of another justice could in-stead just reflect something about the case that renders it more prone to disagreement, such as being legally or politically salient, or something more idiosyncratic about the way the individual interrupting justice views the case. We set out an empirical strategy that isolates the conflict explanation from these and other possible explanations and find that the conflict inherent in interruptions explains over half of the relationship between interruptions and disagreement. These findings suggest that oral arguments are important in shaping judicial decisions—they are not simply a “dog and pony show”—and that there is valuable information about future case outcomes that has not previously been appreciated

Judicial Conflicts and Voting Agreement: Evidence from Interruptions at Oral Argument

This Article asks whether observable conflicts between Supreme Court justices—interruptions between the justices during oral arguments—can predict breakdowns in voting outcomes that occur months later. To answer this question, we built a unique dataset based on the transcripts of Supreme Court oral arguments and justice votes in cases from 1960 to 2015. We find that on average a judicial pair is seven percent less likely to vote together in a case for each interruption that occurs between them in the oral argument for that case. While a conflict between the justices that leads to both interruptions and a breakdown in the voting coalition is one possible explanation of the finding, it is not the only one. An interruption by one justice of another justice could instead just reflect something about the case that renders it more prone to disagreement, such as being legally or politically salient, or something more idiosyncratic about the way the individual interrupting justice views the case. We set out an empirical strategy that isolates the conflict explanation from these and other possible explanations and find that the conflict inherent in interruptions explains over half of the relationship between interruptions and disagreement. These findings suggest that oral arguments are important in shaping judicial decisions—they are not simply a “dog and pony show”—and that there is valuable information about future case outcomes that has not previously been appreciated

Behavioral Responses to Taxation: Cigarette Taxes and Food Stamp Take-Up

This paper investigates a previously unexplored behavioral response to taxation: whether smokers compensate for higher cigarette taxes by enrolling in food stamps. First, we show theoretically that increases in cigarette taxes can induce food stamp take-up of non-enrolled, eligible smoking households. Then, we study the theoretical predictions empirically by exploiting between and within-household variation in food stamp enrollment from the Current Population Survey as well as data from the Consumer Expenditure Survey. The empirical evidence strongly supports the model predictions. Higher cigarette taxes increase the probability that low-income smoking households take-up food stamps