Tortious Interference and the Law of Contract: The Case for Specific Performance Revisited

What is the role of contract law in remedying breach? The question of the appropriate legal remedy, specific performance versus money damages, has provided adequate fodder for three decades of debate in the law and economics discourse. In the legal discipline at large, the topic has spurred centuries of debate, as illustrated by Oliver Wendell Holmes\u27s famous line: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.” Holmes\u27s approach to contractual remedy would evolve during the latter half of the twentieth century into the “efficient breach” theory, which advocates the remedy of expectation damages upon breach in order to encourage the promisor\u27s breach where the resulting profits to the promisor exceed the loss to the promise. Although this favorite doctrine of law and economics scholars more or less describes the norm in Anglo-American contract law, in which damages are routinely available and specific performance rarely granted, it has met and continues to meet with criticism on a variety of grounds. Alan Schwartz, in The Case for Specific Performance, argues for the routine availability of the specific performance remedy in the event of breach. His argument centers around two main points. First, he claims that the damages remedy is often undercompensatory. Second, he refutes the claim that making specific performance routinely available will result in efficiency losses or interfere with the liberty interest of promisors. Schwartz\u27s arguments have the potential to shed light on another, closely related cause of action: the tort of interference with contract and business relations. Consider the following scenario: A enters into a contract with B, and a third party, C, who has knowledge of the existing contract, induces breach and receives more or less the same performance that the original promisee would have received. In such a case, the tort of interference allows the promisee to recover damages from a third-party inducer, often in addition to an award of damages from the promisor under a breach-of-contract claim. This has puzzled proponents of efficient-breach theory because it does in the three-party context what is rarely done in the two-party context under contract law: It protects the promisee\u27s contractual right with a property rule. In fact, the inducement tort “implements even broader protection than Promisee\u27s property-rule remedy [i.e., specific performance] against Promisor, for it consists of rights that run in favor of Promisee against the world.” Reconciling this legal remedy with the theory of efficient breach, which encourages the Pareto superior transfer of goods to those who value them most, has proven exceedingly difficult for even its staunchest defenders. Although some legal scholars have addressed this inconsistency by questioning the very legitimacy of the tort of interference with contract, others have tried to resolve the inconsistency in a variety of ways. Part II of this Note provides an overview of Schwartz\u27s arguments in favor of the routine availability of specific performance. Part III briefly addresses the historical development of the interference tort, focusing specifically on the inducement context. The tort\u27s origins and evolution shed light on its close relationship with the availability and adequacy of contract remedies. Part IV, presents the attempts of various scholars to explain what appear to be the analogous efficiency objectives of the interference tort and contract law, and offer criticisms particular to each framework. Ultimately, the only convincing arguments, as a positive matter, rest on a conception of the interference tort as filling in the gaps of contract law, where traditional remedies are inadequate. But if this is the case, then would it not be more coherent to restructure the system of remedy under contract rather than create this remedy through the back door of tort? Part V suggests that the expansion of the specific-performance remedy for breach of contract, as advocated by Schwartz, provides a potential solution to the doctrinal confusion and controversy surrounding the inducement-tort remedy

Billboards and Big Utilities: Borrowing Land-Use Concepts to Regulate Nonconforming Sources Under the Clean Air Act

Part II of this Note provides an overview of how the regulatory framework has developed with regard to federal control technology requirements governing major stationary sources. It focuses on the statutory language of the 1970 Clean Air Act and the 1977 Clean Air Act Amendments and subsequent administrative and judicial interpretations. Part III examines the development of the land-use doctrine governing the regulation of preexisting nonconforming uses and highlights its theoretical similarities to the air pollution context. Part IV looks specifically at the jurisprudence surrounding the use of amortization provisions in the zoning context. By and large, a court\u27s acceptance of an amortization provision in the majority of cases hinges on a determination of the reasonableness of an amortization period based on (1) a balancing of public good against private loss and/or (2) the length of the amortization period in relation to the investment. Another important vein of judicial reasoning that emerges on the reasonableness of amortization provisions in the takings calculation is what is termed the amortization-compensation equation. This line of reasoning, popularized in the context of billboard amortization, suggests that the monopolistic position afforded to the owner of a nonconforming use during the amortization period is itself a type of compensation for future loss. Part V proposes that the incorporation of amortization provisions into the Clean Air Act could provide a viable solution to the problem posed by old sources and, if applied properly, is a solution that is both preferable to several proposed alternatives and one that should successfully withstand constitutional takings arguments. Finally, this proposal is framed within the context of a larger debate between the proponents and critics of command-and-control regulation

A Trade Secret Approach to Protecting Traditional Knowledge

This Article argues that the doctrinal and normative divide between traditional knowledge protection and intellectual property law has been overemphasized, and that trade secret law can help narrow it. First, in terms of doctrinal fit, trade secret doctrine offers a viable model for protecting a subset of traditional knowledge that is not already publicly available. Broadly speaking, trade secret law imposes liability for the wrongful acquisition, use, or disclosure of valuable information that is the subject of reasonable secrecy efforts. Second, in addition to its practical import, the underlying justifications of trade secret law offer a useful normative guide for theorizing traditional knowledge protection and linking it to the broader purposes of intellectual property law. The Article unfolds in four parts. Part II sets the stage by defining traditional knowledge and describing the cultural and political shifts that led to its emergence as a subject of international controversy. Part III considers the three predominant approaches commentators and scholars have taken to understand and rationalize traditional knowledge protection—what is loosely termed the preservation approach, the human rights approach, and the conventional IP approach. Parts IV and V revisit the conventional IP approach and expand upon it by examining trade secret doctrine in depth. Part IV assesses the merits and limitations of trade secret law for the protection of traditional knowledge. And Part V considers how the disclosure justification of trade secret law-and intellectual property law more broadly-can inform a more compelling IP theory for traditional knowledge protection. Part VI concludes

Trade Secret Fair Use

Trade secret law arose to help companies protect confidential information (e.g., the Coca-Cola formula) from competitors seeking to copy their innovative efforts. But companies increasingly use trade secret law to block a wide swath of information from the scrutinizing eyes of consumers, public watchdog groups, and potential improvers. Companies can do this, in part, because trade secret law lacks clear limiting doctrines that consider the social benefits of unauthorized use. For example, trade secret law makes no allowance for the departing employee that uses proprietary information to create a substantially improved product or disclose public health risks. This Article argues that trade secret law\u27s indifference to the social benefits of unauthorized use stands in contrast to other intellectual property doctrines, like patent and copyright. Copyright law incorporates the affirmative defense of fair use, which aims to protect a variety of unauthorized but socially beneficial uses of another\u27s copyrighted work (e.g., educational uses). To a lesser extent, patent law\u27s reverse doctrine of equivalents and remedies analysis direct courts to consider the social benefits of a defendant\u27s technological improvement. Such limiting doctrines act as safety valves to reconcile intellectual property rights with competing cumulative innovation and First Amendment interests. This Article demonstrates the need for a similar safety valve in trade secret law and argues that courts should adopt a multi-factor trade secret fair use analysis to better address these competing concerns

Of Fences and Definite Patent Boundaries

Patent claims are supposed to mark the boundaries of a patent clearly so that competitors and follow-on innovators can avoid infringement. But commentators routinely lament the failure of patent claims to adequately perform this notice function. In numerous calls for patent reform, courts and scholars have contrasted the indeterminacy of patent claims with the clarity of real property boundaries. The Supreme Court recently echoed this sentiment in Nautilus v. Biosig Instruments. In Nautilus, the Court heightened the patent requirement of claim definiteness and reversed Federal Circuit precedent, which had allowed many ambiguous claims to survive invalidity challenges. This Article analyzes how the oft-invoked contrast between ambiguous patent claims and clear property boundaries (e.g., fences ) bears on two controversial issues in patent scholarship: (1) the problem of uncertain claim scope and (2) the role of property-talk --using traditional property law as metaphor, rhetorical device, or doctrinal guide-in patent law. Many intellectual property scholars view property-talk suspiciously, because it usually supports strengthening patent holders\u27 rights at the expense of competitors and follow-on innovators. This Article\u27s primary contribution is to complicate the prevailing view of property-talk in patent law as uniformly favoring patent holders. This Article focuses on the claim uncertainty problem and recent changes to patent law\u27s definiteness requirement. In this context, property-talk--specifically, the metaphor of clear, fixed, and determinate real property boundaries--supports requiring patentees to draft clearer claims and provide better notice to competitors and follow-on innovators about the boundaries of a patent

Community acquired methicillin-resistant Staphylococcus aureus pneumonia leading to rhabdomyolysis: a case report

Community-acquired methicillin resistant Staphylococcus aureus (CA-MRSA) is considered an underreported entity in India. In this case report, the authors describe a thirty-five year old immunocompetent male presenting with severe respiratory distress requiring intubation. On further work up, a CT thorax showed features consistent with necrotizing pneumonia. The morphology and sensitivity pattern of the organism found in the bronchoalveolar lavage fluid and blood culture were consistent with MRSA. The patient's stay in the hospital was complicated by acute renal failure due to rhabdomyolysis with CPK levels of 9995 U/L. The patient was started on dialysis and improved there after. This case brings to light that CA-MRSA is becoming a problem in developing nations where antibiotics are frequently used empirically with little laboratory guidance. It also is a rare reporting of rhabdomyolysis due to CA-MRSA

Trade Secrecy Injunctions, Disclosure Risks, and \u3ci\u3eeBay\u3c/i\u3e\u27s Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court\u27s eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply pre-sumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four-factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts\u27 more deliberative approach to patent injunctions post-eBay has been viewed as beneficial for the patent system. Over the past decade, eBay\u27s influence has migrated to other areas of IP. This article offers the first account of eBay\u27s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP--for example, the hard-to-quantify risk that disclosure poses to trade secret owners--has lessened eBay\u27s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret--that is, where a defendant builds upon a plaintiff\u27s trade secret but does not disseminate it--courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility