The Dual Message of Moral Rights

Lior Zemer

90 Texas L. Rev. See Also 125

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Professor Zemer responds to Ms. Mills’s critique of moral rights, including the right of integrity, by arguing that protection of the right of integrity strengthens authorship morality.  He observes that the “bundle of sticks” conception of property is not absolute and allows for the division of rights to a particular piece of property.  Similarly, copyright law allows for division such that certain rights, including the right of integrity, can be protected.  Finally, Professor Zemer argues that there is intrinsic value for artists in the artistic enterprise that is unaddressed by Ms. Mills’s critique of moral rights.  The value also extends to the public through the protection of art and its creative message.

Conceptual Clarity and Necessary Muddles

Michael D. Green & William C. Powers

90 Texas L. Rev. See Also 41

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Professor Michael D. Green and President William C. Powers, Jr., the Co-Reporters of Restatement (Third) of Torts, describe the development of indivisible injury jurisprudence and its evolution in the Restatements. Professor Green and President Powers address Mr. Raupp’s arguments regarding the narrowing of the doctrine, but their analysis leads to a different conclusion, namely that “Apportionment in the face of evidential uncertainty is conceptually messy and does not nourish our appetite for logical ordering.  Yet our judgment is that the alternative is worse, so the law should make this accommodation, appreciating the trade-offs involved.”

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.