Volume 42, Number 4


Kathryn A. Sabbeth

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take over public functions, their ubiquity in civic life and power over the lives of individuals grows, and the need to check that power deserves increased attention.
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David Schraub

The scholarly literature on law and social movement has historically focused on public law issues like environmentalism, reproductive rights, and race relations, while staying far away from business and firm behavior. Business behavior was easily understood as that of self-interested profit-maximizers and thereby left to the economics. Recently, however, social movement theorists have begun paying more attention to the business world. While traditional economic models can explain why businesses pursue higher profits, greater market shares, and superior regulatory climates, they are limited in their ability to explain how wish becomes reality. The formation and identification of market opportunities are products of social forces, and firms are part of that process—both shaping and being shaped by social dynamics which create and recreate the economic terrain.

This Article joins that burgeoning literature by applying a social movements approach to the energy law field. Specifically, it looks to how voluntary Renewable Energy Credit (REC) sales—selling the “clean” in “clean electricity”—could restart the moribund movement towards increased electricity market competition (known as “restructuring”). While electricity restructuring gained considerable momentum from the late 1970s through the 1990s, the movement was crippled by the high-profile Enron collapse in 2001. Efforts to restart the debate have foundered as restructuring proponents have had no point of entry to connect with consumers or influence policymakers in states dominated by incumbent electricity monopolies. Voluntary REC sales, which entail sale of an electricity “product” that bypasses the physical transmission network, offers a “foot in the door” for new market entrants who can connect with consumers and reshape their public image free from interference by the extant monopoly. From a business standpoint, the benefit of entering the voluntary REC is less about direct revenues or profits from the sale, the traditional economic markers of success. Rather, REC sales are valuable for reasons well known to social movement theorists—they can establish relationships and alliances in previously untapped social arenas and alter public understandings of concepts and ideologies critical to the firm’s overall interests.
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Eric A. Zacks

This Article identifies and examines the principal-agent problem as it arises in the context of contract preparation. The economic agency relationship, as it may be understood to exist for contract drafting, provides a superior framework for understanding and reforming the inability of the non-drafting party (the principal) to control the drafting party (the agent). As an economic agent, the drafting party faces a moral hazard when preparing the contract because of the differing interests of the parties as well as the information and control asymmetries that exists. For example, the use of standard form contracts in consumer transactions is an example of the drafting party being motivated and able to act in the drafting party’s favor without detection or resistance by the non-drafting party. To date, contract law reforms typically have focused on the non-drafting party’s ability to monitor and attempted to alleviate information and control asymmetries, with suboptimal results. Economic theory, however, not only helps explain these failures but also suggests superior reforms. Reforms should be focused on realigning the interests of the two parties instead of remedying the problems that emanate from such misalignment. More specifically, reforms should incentivize drafting parties to devote resources to determining how to make effective disclosure of contract terms and penalize drafting parties when they do not.
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Chris Hastings

On June 2, 2014, the United States Environmental Protection Agency (EPA) announced the Clean Power Plan (CPP), an administrative rulemaking with the goal of reducing greenhouse gas (GHG) emissions from stationary electrical generating units (EGUs). The United States has made progress in reducing greenhouse gas emissions (10% below 2005 levels) but is still far from President Obama’s earlier pledge to reduce GHG emissions to 17% below 2005 levels by 2020. However, by implementing the CPP, the United States should surpass that goal. CPP’s end goal is to reduce emissions by 26% to 30% of 2005 levels by 2030. The EPA has economically quantified the public health and environmental benefits of the projected emissions reductions to be between $23 billion and $59 billion, with a 3% discount rate. Additionally, the economic benefits of the rule should amount to $30 billion in 2030.
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Carrie E. Rosato

Patent monopolies are tolerated because we believe they promote progress that benefits society. What should be done when these monopolies actually increase human suffering? Drug prices in America are fifty to eighty percent higher than the rest of the world, meaning many cannot afford drugs that will improve or even save their lives. When striking a balance between the interests of the patent holder and that of the public, it is important to bear in mind that the rewards granted to patentees are secondary to the public benefit derived from their labors. The ideal solution would come from Congress creating a need-based exception to drug patent infringement, but this is unlikely to occur. An infrequently used statutory exemption, found in Section 287(c) of the Patent Act, precludes liability when a physician infringes a medical process patent. With the advances in 3D printing, doctors will soon be able to print drugs for their patients. The courts could interpret 287(c) to protect physicians from patent liability for printing drugs when provided to patients demonstrating financial hardship. When faced with new technology, the courts have been creative in interpreting the intellectual property statutes in order to reach a just and equitable resolution. The public need for affordable drugs should spur the courts to such creativity when addressing the issue of 3D drug printing.
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