By Daniel J. Bussel. Responding to Brook E. Gotberg, Conflicting Preferences in Business Bankruptcy: The Need for Different Rules in Different Chapters. Read the response here.
By Michael A. Carrier ABSTRACT: One of the most pressing issues in patent and antitrust law involves agreements by which brand-name drug companies pay generic firms to delay entering the market. In FTC v. Actavis, the Supreme Court held that these payments could violate the antitrust laws. In the wake of the decision, courts, the parties, and commentators have been fiercely debating the question of what constitutes a payment, with courts reaching divergent outcomes. This Article offers a framework that answers this question. It first articulates two justifications based on litigation costs and brand payments for generic services. It then introduces a test based on whether the brand conveys to the generic a type of consideration not available as a direct consequence of winning the lawsuit. Such a showing—accompanied by a finding of an exclusion payment that violates the antitrust laws—demonstrates that the generic’s exclusion from the market is based on the payment rather than the patent. Applying the framework, the Article finds that the test is satisfied when generics delay entering the market after receiving cash, “poison pill” clauses allowing the acceleration of generic entry, and brand agreements not to introduce their own generics. In contrast, the test is not satisfied when the brand forgives damages accrued by a generic that has entered the market. The test thus solves the puzzle articulated by Judge Posner that every settlement provides something of value to the generic. And it offers a framework that resolves a contentious issue with significant consequences for health care and the economy while being consistent with common sense, economics, and the policies underlying the relevant legal regimes.
By Shyamkrishna Balganesh, Irina D. Manta & Tess Wilkinson-Ryan ABSTRACT: Copyright law’s requirement of substantial similarity requires a court to satisfy itself that a defendant’s copying, even when shown to exist as a factual matter, is quantitatively and qualitatively enough to render it actionable as infringement. By the time a jury reaches the question of substantial similarity, however, the court has usually heard and analyzed a good deal of evidence about: the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s copying. Despite having this large body of evidence before it, the jury is required to answer the question of substantial similarity through a mere comparison of the two works. In this Essay, we report results from a series of experiments in which subjects were presented with a pair of images and asked to assess the similarity between the two works using the criteria ordinarily given to factfinders for the substantial similarity determination. When provided with additional information about the simple fact of copying, or about the amount of creative effort that went into the protected work, we saw an appreciable variation (i.e., upwards) in subjects’ assessments of similarity between the works, suggesting that fact-finders are sensitive to additional information about the two works and the creators who produced them, contrary to what current law assumes. Our study suggests that the availability and salience of such additional information actively distorts fact-finders’ assessments of the similarity between the two works, calling into question the purported objectivity of the substantial similarity requirement as a whole.
By Elisabeth A. Archer ABSTRACT: In 2009, the Iowa Supreme Court decided State v. Bruegger, dramatically changing the court’s cruel and unusual punishment precedent under article I, section 17 of the Iowa Constitution. Prior to Bruegger, the court interpreted article I, section 17 in lockstep with federal Eighth Amendment interpretation, deeming the two provisions identical in scope, import, and purpose. However, Bruegger inexplicably altered this precedent by applying article I, section 17 more stringently than the Eighth Amendment. Defendants in Iowa began seeking heightened protection under the Iowa Constitution—protection Bruegger’s new interpretation seemingly afforded. When the Iowa Supreme Court decided State v. Null and State v. Pearson on August 16, 2013, and State v. Lyle on July 18, 2014, it solidified Bruegger’s standardless interpretation and again failed to enunciate a principled basis for interpreting article I, section 17 independent of the Eighth Amendment. These recent cases do not explain what in the Iowa Constitution justifies the new interpretation, or how the new interpretation will be applied to future cases. By evaluating the problems resulting from Null, Pearson, and Lyle, demonstrating several bases supporting adherence to federal interpretation, and suggesting alternative methods of interpretation, this Note demonstrates why the Iowa Supreme Court should reject Null, Pearson, and Lyle’s standardless interpretation and adopt a principled basis for independent interpretation of article I, section 17 in the future.

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