High drug prices are in the news. In some cases, such as AIDS-treating Daraprim and the life-saving EpiPen, the price increases dramatically. In other cases, which have received less attention, the price stays high longer than it should. Either way, anticompetitive behavior often lurks behind inflated prices. By delaying price-reducing generic competition, this behavior […]
The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.” Although it...
Introduction President Donald Trump has quickly marshalled the powers of the presidency to challenge President Barack Obama’s environmental legacy. Facing an increasingly intransigent Congress, the Obama Administration placed significant emphasis on rulemaking and other administrative actions to push its progressive agenda. Whatever the merits of this approach, many of these actions are not safe from […]
In 2011, Congress created a new administrative pathway through which a party can challenge the validity of a granted patent: inter partes review (IPR). Like preexisting reexamination procedures, IPR is a mechanism through which a private party may ask the U.S. Patent and Trademark Office (PTO) to invalidate or narrow patents that fail to meet the standards of patent eligibility, thus returning subject matter to the public domain and protecting...
When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school-district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served...
Sharing economy firms such as Uber and Airbnb facilitate trusted transactions between strangers on digital platforms. This creates economic and other value but raises concerns around racial bias, safety, and fairness to competitors and workers that legal scholarship has begun to address. Missing from the literature, however, is a fundamental critique of the sharing economy grounded in asymmetries of information and power. This Essay, coauthored...
Growing demands for privacy and increases in the quantity and variety of consumer data have engendered various business offerings to allow companies, and in some instances consumers, to capitalize on these developments. One such example is the emerging “personal data economy” (PDE) in which companies, such as Datacoup, purchase data directly from individuals. At the opposite end of the spectrum, the “pay-for-privacy” (PFP) model requires...
In 1886, Oliver Wendell Holmes, Jr., then a Professor at Harvard Law School, gave a talk to the students of Harvard College, which included a much-quoted line: “I say—and I say no longer with any doubt—that a man may live greatly in the law . . . . [H]e may wreak himself upon life, may drink the bitter cup […]
In the fall of 1982, I was planning a month-long trip to Italy with a friend. Debby Greenberg had organized a conference on comparative affirmative action at the Rockefeller Foundation’s Bellagio Center that summer, and Jack and Debby traveled around Italy while there. Jack invited me and my “spousal analog”—a coinage of his own that […]
For centuries, the duty of loyalty has been the hallowed centerpiece of fiduciary obligation, widely considered one of the few “mandatory” rules of corporate law. That view, however, is no longer true. Beginning in 2000, Delaware dramatically departed from tradition by granting incorporated entities a statutory right to waive a crucial part of the duty of loyalty: the corporate opportunities doctrine. Other states have since followed Delaware’s...