Volume 39, Number 3


David Adam Friedman

In 1821, Judge Burrough famously described the public policy defense in contract law as a “very unruly horse.” To test this proposition, this Article presents the first systematic content analysis of public policy defense case law. The sparse previous literature and commentaries on this defense, which relied on theory and leading cases, tend to accept the notion that this area of contract law proves unruly. I reveal an underlying order that emerges from the ordinary run of public policy defense cases, rather than the leading cases. An examination of opinions written in 2009 reveals that public policy defenses that specify a violation of a statute or regulation tend to be twice as successful than those that appeal broadly to public policy. Further, the employment of the defense can be segmented to show that the “unruly” cases only comprise one-third of the sample. These findings, among others, significantly cut the magnitude of the perceived “unruly horse” problem and should reframe our approach to the public policy defense.
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Eric E. Johnson

The enterprise of intellectual property law has long been based on the premise that external incentives—such as copyrights and patents—are necessary to get people to produce artistic works and technological innovations. This Article argues that this foundational belief is wrong. Using recent advances in behavioral economics, psychology, and business management studies, along with empirical investigations of industry, it is now possible to construct a compelling case that the incentive theory, as a general matter, is mistaken, and that natural and intrinsic motivations will cause technology and the arts to flourish even in the absence of externally supplied rewards. It follows that intellectual property law itself needs a fundamental rethinking.
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John M. Newman

Claims alleging anticompetitive product design and redesign lie at the very core of one of antitrust law’s most challenging dilemmas: the intersection between innovation and regulation, invention and intervention. For over three decades, courts and scholars have struggled to determine the proper analytical framework within which to address such cases. Meanwhile, the very industries in which challenged conduct occurs have been undergoing fundamental changes.

As demonstrated by the ongoing and recent antitrust litigation involving high technology firms Apple, Intel, and Microsoft, distinctive features characterize most product markets in what has been called the “New Economy”—and what increasingly has become simply “the economy.” Many of these features not only uniquely incentivize anticompetitive, design-related conduct but also render such conduct uniquely susceptible to antitrust scrutiny. Accordingly, this Article both supplies a proper understanding of code-based product markets and, perhaps more importantly, provides a structured, efficient, and rational method for analyzing design-related conduct in those markets.
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Andres Sawicki

This Article analyzes patent mistakes—that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones.

Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others.

This Article compares the costs of making mistakes of different types, at different times, and on different doctrinal bases. These comparisons produce some surprising results—for example, under certain plausible conditions, it will be better to wrongly refuse to grant a patent than to wrongly invalidate a patent that had already been granted. The conclusions here have important implications for persistent issues in patent law, including how closely courts should scrutinize the validity of issued patents and how the Patent and Trademark Office should allocate scarce enforcement resources.
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Wes Gay

Some National Collegiate Athletic Association (NCAA) student athletes of various sports and institutions have recently been instructed that they are not permitted to use certain social media platforms. The purported reasons causing universities to implement these bans range from interests in image control to pressure from the NCAA to monitor and report potential NCAA infractions. However, these bans are likely unconstitutional.4 The United States Supreme Court has stated that a public educational institution cannot censor speech simply because it wishes to avoid “discomfort and unpleasantness.” These bans are now more noticeable and have entered into the public discussion in part because other students at the same public educational institutions are not subject to the same restrictions as the student-athletes. This Note will examine the recent social media bans and the constitutional issues they raise when public educational institutions restrict NCAA student-athletes from logging on and speaking out. This Note will contend that those bans that are not motivated by educational concerns are in fact unconstitutional restrictions on student-athletes’ free speech rights.
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