It Takes a Class: An Alternative Model of Public Defense

Katherine E. Kinsey

93 Texas L. Rev. 219

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On January 8, 2013, Judge Shira Scheindlin granted a preliminary injunction in the case Ligon v. City of New York, effectively halting the New York Police Department’s controversial “stop-and-frisk” policy. The representatives for the Ligon plaintiffs were the usual civil rights organizations, but there was another organization that seemed out of place in this class action lawsuit, the Bronx Defenders. In this note, Ms. Kinsey examines the role that this nonprofit public defender office played in the Ligon litigation. She begins by discussing stop-and-frisk practices in New York City as well as the legal backdrop for the Ligon decision. She then analyzes the institutional role of public defenders in the United States justice system, including a brief history of public defense, a description of its current organizational models, and an introduction to the obstacles that public defenders face. She then explains the Bronx Defender’s role in the Ligon litigation and examines whether public defender offices should take part in further class action civil litigation.

Employing Virtual Reality Technology at Trial: New Issues Posed by Rapid Technological Advances and Their Effects on Jurors’ Search for “The Truth”

Caitlin O. Young

93 Texas L. Rev. 257

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As computer programmers create more advanced virtual reality environments, it is only a matter of time before trial lawyers begin to adapt these technological advances as tools for use in the courtroom. This increased use of immersive virtual environments (IVEs) as demonstrative evidence raises substantial legal questions. In this note, Ms. Young argues that  IVEs are more than just another point in the historical progression in demonstrative evidence from mere black and white photographs. She provides a brief history of the evolution of demonstrative evidence and examines IVEs and how they differ from other computer animations. She analyzes additional issues that may arise from the use of IVEs in criminal trials, finally concluding that courts proceed cautiously in admitting IVEs due to their potentially prejudicial nature.

Introduction: The Path of IP Studies: Growth, Diversification, and Hope

John M. Golden, Robert P. Merges & Pamela Samuelson

92 Texas L. Rev. 1757

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The U.S. Supreme Court has officially declared that we now live in the “Information Age.” Intangible assets are estimated to account for nearly seventy five percent of the value of publicly traded companies. Innovation, a form of “information in action,” has been recognized as vital to economic growth. This increase in the importance of innovation and information has inevitably led to concern with intellectual property. Despite this concern, empirical evidence about how the IP regime operates and its potential for reform has been frustratingly sparse.

This introduction to the University of Texas School of Law Symposium on Evidence-Based IP discusses the progression of IP based research and scholarship to better set the stage for the discussion of a more empirically-based focus in IP related research.

Understanding the Realities of Modern Patent Litigation

John R. Allison, Mark A. Lemley & David L. Schwartz

92 Texas L. Rev. 1769

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Sixteen years ago, John Allison and Mark Lemley published the first detailed empirical look at patent litigation. In this Article, with the help of Professor Schwartz, they update and expand the earlier study with a new hand-coded data set. They evaluate all substantive decisions rendered by any court in every patent case filed in 2008 and 2009—decisions made between 2009 and 2013. They consider not just patent validity but also infringement and unenforceability. Moreover, they relate the outcomes of those cases to a host of variables, including variables related to the parties, the patents, and the courts in which those cases were litigated. The result is a comprehensive picture of the outcomes of modern patent litigation, one that confirms conventional wisdom in some respects but upends it in others. In particular, they find a surprising amount of continuity in the basic outcomes of patent lawsuits over the past twenty years, despite rather dramatic changes in who brought patent suits during that time.

The (Still) Shaky Foundations of Trade Secret Law

Robert G. Bone

92 Texas L. Rev. 1803

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Trade Secret law is a strange member of the intellectual property family with its goal to protect secrecy and liability rules that focus on the method of appropriation. In this article, Professor Bone furthers his view that trade secrets should not have a body of law distinct from other legal theories. He begins by briefly describing trade secret law and rehashing the main points of his 1998 article, where he first expressed that trade secret law should not be distinct. He then critically examines the arguments advanced by trade secrecy supporters since 1998. Finally, he explores the question of how best to handle the problem of limited empirics in general and in the context of trade secret law.

Beyond the Incentive-Access Paradigm? Product Differentiation & Copyright Revisited

Oren Bracha & Talha Syed

92 Texas L. Rev. 1841

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In recent years, the “product differentiation” theory has become an important component of copyright-policy analysis. Given the problems inherent in the traditional theory, grounded in a framework known as the incentive-access paradigm, used for copyright-policy analysis, product differentiation could offer a more structured understanding of how copyright laws can increase innovation. In this article, Professors Bracha and Syed reevaluate the product differentiation theory as applied to copyright law. They develop an analytic framework of “inframarginal” and “supramarginal” parameters of copyright protection, which integrates disparate strands of economic analysis of copyright into a single coherent whole. They further try to clarify and correct many of the concerns that have been raised about the product differentiation theory. They then evaluate the copyright-policy reforms that have been advanced on the basis of the product differentiation theory. Finally, they offer their own assessment of what policy prescriptions most plausibly follow from product differentiation analysis.

Experimental Tests of Intellectual Property Laws’ Creativity Thresholds

Christopher Buccafusco, Zachary C. Burns, Jeanne C. Fromer & Christopher Jon Sprigman

92 Texas L. Rev. 1921

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Despite the fact that Copyright and Patent law are both meant to encourage the production of new creative works and inventions, they have separate thresholds of proof necessary to determine whether some new creation is sufficiently innovative to merit legal protection. In this article, Professors Buccafusco, Burns, Fromer, and Sprignman present their results from a series of experiments meant to determine what affect these different thresholds have on innovation and creativity. Specifically, they test whether the existence of a creativity threshold that conditions entry into a prize lottery on meeting certain performance standards affects how creative people are. Professors Buccafusco, Burns, Fromer, and Sprigman report four original experiments designed to measure the effects of different thresholds on creativity. They then discuss the implications of their findings for IP law and for creativity and innovation more generally.Further, they contribute to the growing debate of whether the copyright threshold should be raised to further stimulate creativity.

Copyright’s Topography: An Empirical Study of Copyright Litigation

Christopher A. Cotropia & James Gibson

92 Texas L. Rev. 1981

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One of the most important ways to measure the impact of copyright law is through empirical examination of actual copyright infringement cases. Yet scholars have universally overlooked this rich source of data. In this Article, Professors Cotropia and Gibson present a study that fills this gap through a comprehensive empirical analysis of copyright infringement litigation, examining the pleadings, motion, and dockets from more than nine hundred copyright lawsuits filed from 2005 through 2008. Using this data, Gibson and Cotropia examine a wide variety of copyright issues, such as the rate of settlements versus judgments; the incidence of litigation between major media companies, small firms, and individuals; the kinds of industries and works involved in litigation; the nature of the alleged infringement; the success rates of particular parties and claims; and the nature of remedies sought and awarded. They also analyze the data to identify ways in which copyright litigation differs from other civil suits and to show that certain plaintiff characteristics are more predictive of success.

Trademark Surveys: An Undulating Path

Shari Seidman Diamond & David J. Franklyn

92 Texas L. Rev. 2029

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Currently, when a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, proof of consumers’ reactions to an advertisement is largely presented through the use of systematic survey evidence. While these surveys can be effective tools, several scholars have questioned the role that these surveys actually play in trademark cases. Using a survey that investigated how attorneys in the United States and internationally use surveys in trademark litigation, Professors Diamond and Franklyn examine the role these surveys play in trademark litigation. In this article, Professors Diamond and Franklyn provide a description of the primary legal topics that appear in trademark and deceptive advertising surveys. They then review the recent studies that investigate the presence and influence of surveys in reported infringement decisions. They examine a sample of cases that did not include survey evidence to assess why surveys are or are not submitted in trademark cases. Finally, they offer an explanation of why surveys may be underrepresented in reported cases, and when surveys succeed and fail as persuasive evidence.