Minnesota Law Review最新文献

{"title":"Vertical Restraints and Intellectual Property Law: Beyond Antitrust","authors":"M. Meurer","doi":"10.2139/SSRN.385702","DOIUrl":"https://doi.org/10.2139/SSRN.385702","url":null,"abstract":"This Article describes how intellectual property (IP) law regulates six types of vertical restraints: restrictions on the field or location of use; restrictions on sharing; control over the frequency of use; restrictions on repair and modification; packaging requirements; and impediments to a buyer's decision to exit its relationship with a seller. There are three reasons to focus on IP oversight of vertical restraints separately from antitrust oversight. First, IP law covers a broader range of vertical restraints. Second, economic analysis of the antitrust-IP conflict focuses mainly on the potential of vertical restraints to exclude downstream competitors. IP doctrines that regulate vertical restraints raise additional policy concerns including whether IP law should aid a seller's attempt to control: the economic life of a durable good; sharing of copyrighted works and patented technology; arbitrage that undermines price discrimination; or a buyer's exit decision. Third, because IP law uses different policy instruments it possibly offers more effective regulation of vertical restraints, and should be used to complement antitrust regulation. IP doctrines that discourage vertical restraints generally cause smaller rent-seeking problems than antitrust doctrines with a similar effect. IP rules that provide background entitlements are relatively clear compared to antitrust rules which require uncertain rule of reason analysis. Furthermore, IP prohibitions that are implemented through preemption or misuse do not give rise to treble damages, and can only be used defensively. In contrast, broad antitrust regulation of vertical restraints creates a threat of opportunistic suits because of uncertainty, the lure of treble damages, and the possibility of initiating an opportunistic or anti-competitive suit against a vulnerable defendant.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"87 1","pages":"1871"},"PeriodicalIF":1.3,"publicationDate":"2003-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68660620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Anticompetitive Settlement of Intellectual Property Disputes","authors":"Herbert Hovenkamp, M. Janis, Mark A. Lemley","doi":"10.2139/SSRN.380841","DOIUrl":"https://doi.org/10.2139/SSRN.380841","url":null,"abstract":"The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts can determine the legality of a settlement agreement without inquiring into the merits of the intellectual property dispute being settled, either because the settlement would be legal even if the patent were invalid or not infringed, or because the settlement would be illegal even if the patent were valid and infringed. Only in a narrow class of cases will the merits of the intellectual property dispute matter. In Part III, we argue that in that narrow middle set of cases antitrust's rule of reason is unlikely to be helpful. Rather, courts must inquire into the validity, enforceability, and infringement issues in the underlying case, with particular sensitivity to both the type of intellectual property right at issue and the industrial context of the dispute. In Part IV, we apply our framework to a number of common settlement terms, most notably the use of exclusion payments to settle pharmaceutical patent disputes. We argue that exclusion payments that exceed litigation costs should be deemed illegal per se. There is no legitimate reason for such payments, and the most likely reason - to permit the patentee to exclude competition that would likely have occurred absent the payment - is anticompetitive. Further, legitimate patent disputes can be settled in other ways than with an exclusion payment - for example, by licensing the defendant or by agreeing to delay entry.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"1 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2003-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.380841","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68648357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Party Admissions in Criminal Cases: Should the Government Have to Eat its Words?","authors":"A. Poulin","doi":"10.2139/SSRN.380082","DOIUrl":"https://doi.org/10.2139/SSRN.380082","url":null,"abstract":"As currently applied, evidence law gives the government an unfair advantage in criminal trials because the prosecution is not responsible for prior statements made by agents acting or speaking for the government. Many courts have held, and most general sources agree, that in criminal cases the statements of government agents are not admissible over hearsay objections as party admissions. The defendant is therefore precluded from even informing the jury of helpful statements made by government agents. Dealing with admissions by government agents in this manner leaves the government free to change its position without repercussions and creates the risk of unfairness. This article reevaluates the use of party admissions against the government and concludes that it should be expanded. After summarizing the law of party admissions prior to the adoption of the Federal Rules of Evidence, the article explores the adoption of the Rules and the resistance by courts to apply the Rules so as to admit party admissions against the government. It analyzes the way in which the rules governing party admissions should apply to governmental admissions, explaining how the requirements of the rules governing adoptive and vicarious admissions should apply to statements made or adopted by the government. Professor Poulin concludes that both the text of the Rules and simple fairness require that the defendant be permitted to introduce evidence of government admissions. Although the government cannot be bound by the previous statements of its agents, juries should still be allowed to weigh these admissions together with all the other evidence in the case.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"36 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2003-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68647486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Economists' New Arguments","authors":"Brett H. Mcdonnell","doi":"10.2139/SSRN.381542","DOIUrl":"https://doi.org/10.2139/SSRN.381542","url":null,"abstract":"This paper is a review and critique, in dialogue form, of Fairness versus Welfare, by Louis Kaplow and Steven Shavell. It raises a number of concerns about the book. Kaplow and Shavell argue that all normative legal policymaking arguments should be grounded in a welfarist approach, that is, they should focus only on how different policies will affect human welfare. They produce a formal argument that any fairness theory (which they define as a theory which does not rely exclusively on welfare) will under some circumstances prefer a policy which makes everyone worse off, and hence we should reject all fairness theories. The book's argument is tautological and convincing only to those whose intuitions already favor welfare over fairness; indeed, Kaplow and Shavell's formal proof of the inconsistency between fairness and welfare can equally validly be used to argue that one should follow a fairness approach rather than the welfarist approach which Kaplow and Shavell prefer. Kaplow and Shavell argue that consistency requires that if one rejects fairness in favor of welfare in the examples they present, then one is committed to rejecting fairness in favor of welfare in all instances. However, there are other, well-known examples where utilitarian and welfarist approaches lead to objectionable results - Kaplow and Shavell's notion of consistency suggests that we should therefore reject welfarism in all instances. Kaplow and Shavell try to explain away intuitions favoring fairness as having an evolutionary origin - in most instances, fairness intuitions and norms advance efficiency. Kaplow and Shavell suggest that therefore when the fairness norms and efficiency conflict, efficiency should triumph. The paper argues that such evolutionary explanations are not always right, and even when they are, we may have other reasons to follow fairness norms anyway. Moreover, the link between fairness norms and efficiency suggests reasons why universal adoption of a welfare approach may reduce welfare.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"92 1","pages":"86-118"},"PeriodicalIF":1.3,"publicationDate":"2003-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68649598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Personal privacy and common goods: a framework for balancing under the national health information privacy rule.","authors":"L. Gostin, J. Hodge","doi":"10.2139/SSRN.346506","DOIUrl":"https://doi.org/10.2139/SSRN.346506","url":null,"abstract":"The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to \"covered entities\" (health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or \"protected health information\" (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities' privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosure. Through the regulations, HHS attempts to set a \"floor\" for protections that, it suggests, \"balance[s] the needs of the individual with the needs of society.\" Reaching this balance, however, is precarious. The national privacy rule does not always achieve a fair and reasonable allocation of benefits and burdens for patients and the community. We suggest a framework for balancing that values privacy and common goods, without a priori favoring either. We instead seek to maximize privacy interests where they matter most to the individual and maximize communal interests where they are likely to achieve the greatest public good. Thus, where the potential for public benefit is high and the risk of harm to individuals is low, we suggest that public entities should have discretion to use data for important public purposes. Provided that the data are used only for the public good (e.g., research or public health), and the potential for harmful disclosures are negligible, there are good reasons for permitting data sharing. Conversely, if data are disclosed in ways that are unlikely to achieve a strong public benefit, and the personal risks are high, individual interests in autonomy should prevail. Consequently, for these kinds of disclosures, the law should strictly prohibit the release of information without ","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"86 6 1","pages":"1439-79"},"PeriodicalIF":1.3,"publicationDate":"2002-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68595906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Gramm-Leach-Bliley Act, Information Privacy, and the Limits of Default Rules","authors":"E. Janger, P. Schwartz","doi":"10.2139/SSRN.319144","DOIUrl":"https://doi.org/10.2139/SSRN.319144","url":null,"abstract":"The Gramm-Leach-Bliley Act (GLB Act) of 1999 sought to provide new rules for financial privacy. Only a few years after the GLB Act's enactment, however, it appears to have failed as far as privacy protection is concerned. The Act has pleased neither privacy advocates nor the financial industry. It may, in fact, be a rare legislative feat to have a single statute create so many diverse critics so quickly. This Article examines the GLB Act and its shortcomings through reference to and refinement of theoretical work regarding the law of incomplete contracts. The key scholarship concerns information sharing and \"defaults,\" or background rules, for filling gaps in agreements. We explore three possible kinds of defaults: majoritarian, information forcing, and norm enforcing. This Article finds that the GLB Act's privacy safeguards are highly problematic as examples of either a majoritarian or information forcing default. The GLB Act also raises difficulties if evaluated as a background rule that seeks to enforce norms. In our judgment, information privacy should be conceptualized as a norm constitutive of a democratic society. The access to personal information and limits on it help form the nature of the society in which we live and shape our individual identities. For example, the structure of access to personal information can have a decisive impact on the extent to which certain actions or expressions of identity are encouraged or discouraged. Our concept of \"constitutive privacy\" suggests that information privacy is a kind of commons that requires some degree of social control to construct and preserve. Default rules, when viewed from this normative perspective, should have a limited role in norm enforcement because of the current poor functioning of the privacy market between consumers and financial institutions. In particular, the presence of bounded rationality along with coordination problems makes default rules a risky choice in this context of information privacy. Under such conditions, the law should generally seek to minimize harms that flow from reliance on bargaining among consumers and data processors. In this Article's final section, we explore ways in which to make the GLB Act's mandatory rules more flexible, and we propose possible revisions to the existing \"notice and opt-out\" default in the GLB Act. Finally, we revisit the GLB Act's opt-out requirement. We propose to improve upon this requirement by using social science research concerning the power of \"frames.\" We also discuss the possible merits of a shift to an opt-in requirement.","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"86 1","pages":"1219-1262"},"PeriodicalIF":1.3,"publicationDate":"2002-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.319144","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68570744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Personal privacy and common goods: a framework for balancing under the national health information privacy rule.","authors":"Lawrence O Gostin, James G Hodge","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"86 6","pages":"1439-79"},"PeriodicalIF":1.3,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24546682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"HIPAA: commercial interests win round two.","authors":"Mike Hatch","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"86 6","pages":"1481-95"},"PeriodicalIF":1.3,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24546681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Security and privacy after September 11: the health care example.","authors":"Peter P Swire, Lauren B Steinfeld","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"86 6","pages":"1515-40"},"PeriodicalIF":1.3,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24546679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Medical records and HIPAA: is it too late to protect privacy?","authors":"Peter D Jacobson","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47393,"journal":{"name":"Minnesota Law Review","volume":"86 6","pages":"1497-514"},"PeriodicalIF":1.3,"publicationDate":"2002-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24546680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}