Journal of Corporation Law

Sanders V. Brown: State-Action Immunity and Judicial Protection of the Master Settlement Agreement

The Master Settlement Agreement (MSA) has been subject to critique, criticism, and judicial challenge since its signing in 1998. While critics list a litany of problems with the MSA, the most prevalent charge is that it permits the settling tobacco companies to act as a state-sanctioned cartel, passing on to consumers the costs of their estimated $206 billion damage payment and using the settlement structure to raise cigarette prices even higher. This Note evaluates Sanders v. Brown, the most...

Caremark and Enterprise Risk Management

Enterprise risk management is the process by which the board of directors and executives of a corporation define the firm's strategies and objectives so as to strike an optimal balance between growth and return goals and related risks. The financial crisis of 2008 revealed serious risk management failures on an almost systemic basis throughout the business community. Shareholder losses attributable to absent or poorly implemented risk management programs likely are enormous. Shareholder suits...

Enabling After-Arising Technology

Much has been written on the nonobviousness standard of patent law, which establishes how different a new technology must be from the prior art in order to merit patent protection. This article offers a preliminary step in the sorely needed systematic exploration of the reach of patent rights into after-arising technology (AAT), focusing exclusively on the role of the enablement doctrine in shaping the reach of literal claim scope into AAT. It proposes that there are three rules that, taken t...

Describing Patents As Real Options

A fairly robust economics literature exists which analogizes patents to real options. Real options create the right, but not the obligation, to purchase the underlying asset at a defined exercise price. A patent is like a real option, economists say, because it allows its owner to choose between exclusively commercializing the patented invention sometime during the patent term or foregoing commercialization altogether. Economists have taken this analogy and used real options analysis to place...

Carte Blanche, Quanta, and Competition Policy

This article takes as a premise that technological innovation, meaning the promotion of new products and processes through invention and creation, best occurs through competition. The challenge for intellectual property and antitrust law is recognizing the many ways that competition occurs as new products are developed, tested, commercialized, and marketed. As this article demonstrates, intellectual property doctrines also promote competition, specifically the competitive forces that promote ...

From Distribution to Dialogue: Remarks On the Concept of Balance in Copyright Law

Few propositions are more frequently asserted in contemporary copyright discussion than the proposition that copyright is a balance between authors and users -- a balance (as some like to say) between the incentive to create and the imperative to disseminate works of authorship. To begin with, the author will develop the proposition that the concept of balance cannot do what it is asked to do in copyright jurisprudence. He will do that through a discussion of the landmark rejections of the sw...

Patents, Property, and Competition Policy

In many other regulated industries the antitrust laws have a role, although often attenuated, in promoting competition. As regulation is less complete there is generally more room for antitrust. In many ways the patent system resembles partial regulation. First, the patent application process involves a petition to a government agency followed by a largely ex parte procedure in which the agency and the applicant negotiate the issuance of a patent. Historically the antitrust laws treated paten...

A Tale of (at Least) Two Authors: Focusing Copyright Law On Process Over Product

US copyright law accords its bundle of rights to the author of the work. But despite the centrality of this figure in the Copyright Act, the statute doesn't define the term, and commentators have yet to agree on precisely what characteristics this creature should have. Copyright law might, therefore, better accomplish its goals if it took better account of the activities and interests of authors rather than focusing on the products of their creativity. Different types of authors engage in dif...

Patent Holdup, Patent Remedies, and Antitrust Responses

In recent years, influential scholars, practicing lawyers, government officials, government commissions, enforcement agencies, and courts have all identified the phenomenon of patent holdup as a serious problem that may require various reforms to both patent and antitrust law. Within the last year or so, however, critics of this view have become increasingly vocal. In this article, the author addresses critiques of patent holdup (leaving the assessment of the empirical case against patent hol...

Relevant Markets for Copyrighted Works

Much of copyright scholarship can be described as an effort to confine an increasingly broad entitlement. The author has argued elsewhere that copyright law no longer can afford to satisfy the actual expectations of creators, but should seek to satisfy their reasonable expectations instead. In this article, he explores how copyright law might look if it learned to speak the language of markets. He locates that language in antitrust law because for antitrust scholars, a market is a thing that ...

Antitrust and Patent Law As Component Parts of Innovation Policy

Antitrust law and patent law have long been considered in tension. On a very simplistic level, antitrust law was seen as anti-monopoly, whereas the very object of the patent laws is monopoly. Antitrust law condemns exclusionary conduct and patent law grants exclusionary rights. There are two conceptions of the relationship between antitrust and patent: in tension or complementary. In reality, both conceptions have an element of truth, but antitrust and patent are neither always in tension nor...

Photographs of Public Domain Paintings: How, If at All, Should We Protect Them?

An original painting that hangs in an art museum is accessible only to those who can visit the museum. A photograph of the painting that reproduces it as faithfully as possible can make the painting's image available to a much wider audience. Such art reproduction photographs can raise a number of copyright issues. In light of this controversy over copyright protection, and the practical hurdles to reproducing public domain paintings, it is worth considering anew the question of what protecti...