Two Cheers for Procedural Review of Guidance Documents

David L. Franklin

90 Texas L. Rev. See Also 111

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Professor Franklin responds to Professor Seidenfeld’s argument in favor of substantive review of guidance documents by raising questions as to whether substantive review is a workable alternative.  Professor Franklin argues that a concern with consistency does not justify giving up the enterprise of procedural review, arguing that Professor Seidentfeld’s argument about the irrelevance of procedural invalidation of guidance documents is overstated.  Next, Professor Franklin acknowledges that he does not object to the proposal to loosen the doctrines of finality and ripeness but questions the effectiveness of the review process.  It is unclear to Professor Franklin how a court would determine which objections and alternatives must be addressed lest the guidance be declared substantively invalid.  As such, Professor Franklin views Professor Seidenfeld’s treatment of the interaction between substantive review and notice and comment as understated.

Professor Franklin concludes, “Preenforcement invalidation of guidance documents for failure to undergo notice and comment is, and should be, the exception rather than the rule.”  Due to the risk of agencies using guidance documents to change law without input from the public, “a persuasive case for abandoning procedural review has yet to be made.”

Paving the Path to Accurately Predicting Legal Outcomes: A Comment on Professor Chien‘s Predicting Patent Litigation

Jay P. Kesan, David L. Schwartz & Ted Sichelman

90 Texas L. Rev. See Also 97

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Professor Colleen Chien recently developed an innovative and important model that relies on a patent’s “after-acquired” characteristics to predict the chances that the patent will be involved in litigation. This comment critiques Professor Chien’s model by identifying certain weaknesses, including that its dataset is limited to 1990 patents and its sample size may be too small to be sufficiently representative, as well as a number of endogeneity concerns. Additionally, we seek a more precise definition of data regarding the patent owner, further categorization of reexamination data, and research into the timing of transfer. Finally, we question her policy recommendations given these weaknesses and propose areas of further inquiry.

Originalism at the Right Time?

Josh Blackman

90 Texas L. Rev. See Also 269

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Professor Blackman critiques the originalist methodology employed by Calabresi and Rickert.

On Predicting Patent Litigation

Lee Petherbridge
90 Texas L. Rev. See Also 75

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Professor Petherbridge focuses on the claim that a model, identified in Professor Chien’s article, can be used to predict whether a patent is likely to be asserted against an innovation.  Using assumptions generous to the model, Professor Petherbridge generates a test that improves the probability of accurately assessing whether a patent will be litigated.  He also identifies a number of practical problems with Professor Chien’s model, including that the model captures false positives that render implementation of the model burdensome.  Professor Petherbridge next asks whether there is a “lurking variable” that can better explain the model’s results and whether the data generated by the model is practically useful.  While Professor Petherbridge identifies these misgivings with Professor Chien’s article, he notes that the article has identified certain acquired characteristics that may make predicting patent litigation an easier task.

Cybersecurity: Toward a Meaningful Policy Framework

Peter M. Shane
90 Texas L. Rev. See Also 87

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Professor Shane responds to the framework for cybersecurity protections developed in Mr. Thompson’s note.  For reasons of practicality and comprehensiveness, Professor Shane argues that this framework is insufficient, and he identifies current issues that suggest larger problems that confront the cybersecurity enterprise.  Professor Shane notes that the current cybersecurity climate is more serious than suggested by Mr. Thompson, with criminal enterprises becoming increasingly sophisticated and damaging to networks.  This climate is also characterized by an absence of effective policy caused by overlapping bureaucracies, conflict between the military and private sectors, private control of networks, and a lack of governmental understanding of the problem.

Professor Shane concludes by identifying his proposal for a national commission to consider public needs and technical expertise in formulating an approach to cybersecurity.

Of Geese, Ribbons, and Creative Destruction: Moral Rights and Its Consequences

Robert C. Bird

90 Texas L. Rev. See Also 63

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Professor Bird responds to Ms. Lindsey Mills’s Note, Moral Rights: Well-Intentioned Protection and its Unintended Consequences, applauding her reasoned criticisms of moral rights, particularly the right of integrity, but noting some misgivings based on her discussions of a Canadian moral rights case and artistic destruction.  Professor Bird concludes with an appeal to pragmatism in light of “artistic doomsday rhetoric” against moral rights protections in American law.

Context: Family Violence Databases and Registries

Aaron Setliff

90 Texas L. Rev. See Also 193

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The Director of the Texas Council on Family Violence provides context for Joyce Young’s argument that the state should create a domestic-abuse offender registry.