See Also Archive
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.
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."
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.
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.
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.
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.
Professor Brophy responds to the ongoing dialogue concerning Professor Calabresi and Ms. Rickert's article with his reactions to their originalist argument that the Fourteenth Amendment prohibits sex discrimination as a matter of original public meaning. He observes a tension between original meaning and original intent and argues that original public meaning may differ from the Framers' "original expected applications." Professor Brophy continues by asking a series of questions to ascertain how the Framers identified, how original meaning is established, and whose meaning governs. Professor Brophy then observes how the Reconstruction-era amendments were construed broadly at the time and how by the Civil War, Americans had viewed the Constitution as a set of broad principles rather than a "mere set of words." Brophy concludes by suggesting potential applications of the Calabresi and Rickert argument.
In this Response, Chapter 13 Trustee Henry Hildebrand addresses whether the results of Professor Katherine Porter’s study warrant the conclusion that Chapter 13 is merely a pretend solution. According to Hildebrand, the fact that debtors who failed to complete their Chapter 13 plans did not achieve the goals that they sought to accomplish when they filed for Chapter 13 is not evidence of the systemic failure of either Chapter 13 or the consumer bankruptcy system. Hildebrand argues that Porter’s study is too myopic, focusing only on the experiences of “failed” Chapter 13 debtors while ignoring the positive results that Chapter 13 has achieved for debtors who were able to complete their plans. He also posits alternative explanations for Porter’s results, including the tendency of overconfident debtors to draft unrealistic repayment plans and the failure of Chapter 13 debtors to seeks post-confirmation judicial modification of their plans. Although he acknowledges that Porter raises valid points about the complexity of the Chapter 13 system and participants’ unrealistic expectations of future financial stability, he argues that these issues apply equally to Chapter 7 debtors and concludes that, absent more probative evidence of systemic failure, they are better solved by providing debtors with increased judicial oversight and legal assistance than by conversion to a single-chapter bankruptcy system.