In the 1932 case Gebardi v. United States, the Supreme Court held that the failure of a statute to punish a party necessary to the commission of the proscribed conduct reflected an affirmative legislative policy to leave such party unpunished. As such, the Court declined to use the conspiracy statute to frustrate Congress’s grant of immunity. In doing so, the Court carved out an exception to the federal conspiracy statute: an exception...
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Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation...
The Supreme Court’s 2014 decision in Fifth Third Bancorp v. Dudenhoeffer rejected a long-held presumption in the U.S. circuit courts that fiduciaries of employee stock ownership plans (ESOPs) act prudently in investing in company stock. Instead, the Supreme Court held, ESOP fiduciaries should be subject to the same duty of prudence as all ERISA fiduciaries, leaving ESOP fiduciaries vulnerable to plaintiffs testing the new standard.
To...
A pharmacist fills a prescription for birth control pills with prenatal vitamins. An in vitro lab loses a cancer survivor’s eggs. A fertility clinic exposes embryos to mad cow disease. A sperm bank switches a selected sample with one from a donor of a different race. An obstetrician predicts that a healthy fetus will be born with a debilitating condition.
These errors go virtually unchecked in a profession that operates free of meaningful...
Introduction Pressure is building again for Congress to reform patent law. Various proposals would reduce patent-litigation costs through fee shifting, delaying discovery, or allowing manufacturers to defend suits on behalf of their customers. Eluding consideration, however, is one simple change that might eliminate millions or even billions of dollars worth of waste across the entire […]