Institut Pasteur v. United States: the AIDS patent dispute, the Contract Disputes Act and the international exchange of scientific data

In the case of Institut Pasteur v. United States, the Institut Pasteur (Pasteur) claimed that the National Cancer Institute (NCI) had breached express and implied contracts to share research on AIDS virus samples provided to NCI by Pasteur. NCI scientists allegedly used the samples to acquire information which allowed NCI to file patent applications for an AIDS blood test kit. The United States Claims Court dismissed the complaint by holding that the Institut Pasteur had not complied with certain administrative procedures required by the Contract Disputes Act before bringing its suit. The United States Court of Appeals for the Federal Circuit reversed the decision of the Claims Court by holding that the disputed contracts did not fit within the scope of the Contract Disputes Act. Soon after the Court of Appeals decision, President Reagan and Prime Minister Chirac announced a settlement agreement whereby the lawsuit was to be dropped, American and French scientists were to share credit for having discovered the AIDS virus, and both parties to the suit were to share the patent rights for the AIDS blood test kit. This settlement suggest that international legal disputes involving urgent scientific and medical matters may require dispute resolution techniques that serve as alternatives to national courts.     

Experts Judging Experts: The Role of Expertise in Reviewing Agency Decision Making

What role does judicial subject matter expertise play in the review of agency decisions? Using a data set of decisions in which the Board of Patent Appeals and Interferences (BPAI) is reviewed by the Court of Appeals for the Federal Circuit, we investigate this question and find that greater subject matter expertise does make it more likely that a judge will vote to reverse an agency decision.     

Copyright in Inanimate Characters: The Disturbing Proliferation of Microworks and the Negative Effects on Copyright and Free Expression

In its September 2015 decision in DC Comics v. Towle, the United States Court of Appeals for the Ninth Circuit recognized the existence of a copyright for inanimate characters. The court held that the Batmobile – a fictional car driven by a fictional superhero – was an independently copyrightable work. This article explores the problems with the Ninth Circuit's analysis and argues that increasing copyright protection for what the authors call “microworks” is misguided and harms First Amendment interests.     

Institutional Arrangements and the Dynamics of Agenda Formation in the U.S. Supreme Court and Courts of Appeals

The manner in which agenda change occurs demonstrates how institutional arrangements influence agenda priorities in the Supreme Court and Courts of Appeals. A neo-institutional theoretic perspective is employed to examine the dynamics of agenda formation in these courts. The article finds that the Supreme Court's agenda choices influence the decisions of litigants, interest groups, and lawyers to appeal certain cases to the Courts of Appeals. While the Supreme Court's agenda primarily is influenced by internal factors, it is constrained by agenda changes in the appeals courts. Critically, it is shown that these federal appellate courts exist within an endogenous system with respect to agenda formation, as both courts respond to agenda changes made in the other over time.     

Fear of Reversal as an Explanation of Lower Court Compliance

Lower courts in the United States are generally responsive to specific precedents and trends in the decisionmaking of their judicial superiors. In this article, we ask why. We test one popular explanation—that compliance can be attributed to judges' fear of having their decisions reversed—through an analysis of search and seizure cases decided in the U.S. Courts of Appeals between 1961 and 1990. Since the Supreme Court cannot reverse a decision unless it agrees to review it, we ask whether circuit judges are more likely to decide as the Supreme Court would be expected to when they face cases that are otherwise more likely to be reviewed by the Court. Finding that they are not, we conclude that fear of reversal cannot account for widespread circuit court compliance in these cases, nor, presumably, more generally. More broadly, our findings point to the importance of factors apart from supervisors and the threat of sanctions in determining subordinates' compliance.     

WAIVER HEARING A FRUSTRATING TASK

In the September decision in Haziel v. United States, Chief Judge Bazelon, speaking for the majority of the U. S. Court of Appeals for the District of Columbia, said:     

Supreme Court Ruling Creates More Standing Room in the Already Heated Global Greenhouse Gas Movement

This article reviews the recent April 2, 2007 Supreme Court decision in the Massachusetts v. EPA, a highly important case regarding greenhouse gases. The case centered on the Court's review of EPA's denial of a petition to regulate greenhouse gas emissions from new motor vehicles. The Court required EPA to reconsider its denial. The Court found that. 1) the petitioners have standing to challenge EPA's denial of their petition; 2) the Court has the authority to review the denial of the petition; and 3) the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles. This article looks specifically at the Court's analysis of standing and jurisdiction by Justice Stevens, who wrote the Court's majority opinion, and two dissenting opinions by Justices Roberts and Scalia. Most interesting is how the closely divided Justices (5 to 4 decision) viewed, very differently, the issues regarding standing, the evidence that emissions from new motor vehicles are causing global warming and harm to Massachusetts, and the agency's judgment in denying the petition. Lastly, the article speculates on the impact of the decision and the current activities taking place at the state and regulated community level involving future regulation, litigation, and opportunities by various companies and coalitions to reduce greenhouse gas emissions. The article then presents five broad areas where companies that emit greenhouse gases should need to maintain or increase awareness to better position themselves in the global greenhouse gas movement.     

An 'enlightened' view of employee committees under the Taft-Hartley Act

The Sixth Circuit Court of Appeals recently ruled, in NLRB v. Streamway Division of the Scott and Fetzer Co., that an in-plant representation committee, unilaterally established by the employer, was not a labor organization. Until 1959, when the Supreme Court decided NLRB v. Cabot Carbon. "labor organization" was narrowly construed, based on the traditional adversary model of labor relations. With Cabot Carbon, and some later Board decisions, the definition has broadened. Now, at a time when many employers are turning to employee committees, quality circles, etc., as ways of improving relations with employees, the Streamway decision takes on particular significance. In the following article, the author examines the statutory basis for determining whether an employee committee is a labor organization, within the meaning of the National Labor Relations Act. He also discusses the judicial and Board precedent for the more liberal definition of "labor organization" set forth in Streamway.     

Privacy rights in the classroom: Peer grading Supreme Court judgment 2002

The United States Supreme Court ruled unanimously in the case of Owasso Independent School District v. Falvo that the practice of students grading each other's work and then calling out the marks does not violate the Family Education Rights and Privacy Act (FERPA) 1974. The Court reversed the decision of the U.S. Court of Appeals (10th Circuit). The judgment came in the case of a mother, Kristja Falvo, who objected to the practice of peer grading and recording in elementary schools. She felt that the practice was a violation of FERPA. Student grades, she argued, were an education record and should not be released to others in the class without a parent's permission. However, the Supreme Court ruled that such grades did not satisfy the definition of an 'education record' under FERPA. The judgment is significant. Teachers' organisations and bodies representing administrators welcomed the decision.     

Wilfulness redefined: In re Seagate

In In re Seagate Tech. LLC, the US Court of Appeals for theFederal Circuit redefined wilfulness relating to patent infringement,altered how wilfulness will be litigated, and as a result, manycompanies may reconsider their defensive opinion policies.     

A Reevaluation of the New York Court of Appeals: The Home, the Market, and Labor, 1885-1905

Closely examining a range of New York Court of Appeals police-power cases during the period 1885 to 1905, this article demonstrates that the New York Court had a long history of accepting and continually expanding the police power. In these police-power cases, one finds the court grappling with an evolving sense of how to balance the concept of and need for a well-regulated society against the rights of an individual in an increasingly complex and interconnected world, as well as a tenacious refusal to abandon Victorian bourgeois norms regarding the dichotomy between the home and workplace. By contextualizing and historicizing New York Court of Appeals cases, the article challenges the dominant historiographical interpretations about late-nineteenth-century law. Moving away from a paradigm that labels the court conservative or liberal, formalist or realist, it argues that the court participated in creating a regulatory state while also employing a reasoning that adopted a sharp distinction between the market and the site of the domestic.     

Organizational factors that contribute to police deadly force liability

Police use of deadly force is a significant concern for municipal policymakers and law enforcement agencies. Following U.S. Supreme Court case law, police agencies and municipal entities may be held civilly liable under Section 1983 for force that is not objectively reasonable; for failure to train; and for policies, customs, and practices that cause constitutional injury. This article analyzes eighty-six cases from the U.S. District Courts and the U.S. Courts of Appeals on Section 1983 liability regarding police use of deadly force. The article focuses specifically on police firearm use in deadly force situations, highlighting how managerial disorganization and administrative breakdown impacts departmental decision making. Principles of management, such as division of labor, hierarchy of authority, span of control, unity of command, and communication are used to explain bad shootings that lead to potential police liability.     

Netherlands court grants copyright protection to perfume scent

In its decision the Supreme Court of the Netherlands has upheldthe decision of the Court of Appeals of 's-Hertogenbosch togrant copyright protection to the scent of the perfume trésorbelonging to Lancôme.     

Claim construction and the doctrine of equivalents in Amgen v Transkaryotic Therapies, Inc

The US Court of Appeals for the Federal Circuit has affirmeda District Court decision that Transkaryotic Therapies Inc andAventis Pharmaceuticals Inc infringed Amgen's erythropoietin(EPO) patents; this decision upheld the validity of two of Amgen'sEPO patents and the infringement by Transkaryotic of three patents,including a patent that does not expire until 2015.     

Mt. Laurel: A Note to Petaluma

Facilitated by the phenomenon of Xerox reproduction, though perhaps delayed by the United States Mails, the decision of the Supreme Court of New Jersey in Southern Burlington County NAACP, et al. V. Mt. Laurel arrived in California. As we await the decision of the United States Court of Appeals in Construction Industry Association v. Petaluma, mapy of US form a captive aubience. In the mail which brought a request for a commentary for this publication I also received a copy of a cover letter from the attorney for the Construction Industry Association, which letter directed a copy of Mt. Laurel opinion to the judges of the Federal Court of Appeals. My receipt of these diverse items was not accidental, for I participated in the oral argument in the Petaluma appeal as one of the amicus counsel in support of the city-appellant. The following are my impressions.     

The Tension Between State Interests and Municipal Zoning Rights in the Realm of Fracking Regulations

This article examines whether local municipalities should have the capability to exercise their home rule authority to ban fracking within their jurisdiction, or whether state law should preempt such acts. The Court of Appeals of New York has found that individual municipalities do have the authority to ban fracking, while the Supreme Court of Colorado recently upheld a district court decision that held that the state's Oil and Gas Conservation Act preempted a town's ability to declare an outright ban. These divergent positions could lead to interesting legal battles as natural gas continues to play a larger role in energy portfolios, while public health concerns grow.     

The Past and Future State of De Facto Parents in New York

Over the past two decades, the definition of “family” has expanded drastically. To address these changing family dynamics, many states have adopted de facto parent laws, which recognize a nonbiological or adoptive parent's right to petition for custody or visitation in strict circumstances. These laws differ drastically from state to state, leaving no common understanding of the requirements to be a de facto parent. Until recently, New York law refused to recognize de facto parents within the Domestic Relations Law, leaving New York as one of the only states without this important distinction. However, this year the Court of Appeals crafted a narrow exception to the rule and allowed for a de facto parent to petition for custody or visitation in extremely limited circumstances. This article proposes that the Court of Appeals’ decision was too restrictive and that New York should adopt a legal framework that reflects this new type of parent, while still recognizing public policy concerns.     

How your website can be a friend or an enemy

The US Court of Appeals for the Federal Circuit recently affirmedthe decision of the TTAB in denying Reed's registration of itsmark ‘Lawyers.com’ as being generic.     

Direct service connection (post-traumatic stress disorder). Department of Veterans Affairs (VA). Final rule

This document amends the Department of Veterans Affairs (VA) adjudication regulations concerning the type of evidence required to establish service connection for post-traumatic stress disorder (PTSD). This amendment implements a decision by the United States Court of Veterans Appeals (the Court) which stated that current regulations do not adequately reflect the governing statute.