Patent assertion entities and the courts: Injunctive or fee-based relief?
نهادهای ادعای ثبت اختراع و دادگاه ها: تخفیف غیرعلنی یا مبتنی بر هزینه؟-2020
A 2006 U.S. Supreme Court decision encouraged district courts to rely more on license fees and less on injunctions as a remedy for patent infringement. This paper provides a simple model in which a paten towning patent assertion entity(PAE) ¨ and an infringing firm engage in Nash bargaining over a possible license fee after the PAE initiates an infringement lawsuit. We compare a fee-based regime in which the court imposes a fair value license fee if there is no settlement with a regime in which failure to reach a settlement leads to an injunction that disrupts production. The injunctive regime always involves a settlement but, in a fee-based regime, settlements occur only for patents on drastic innovations (as defined by Arrow, 1962). For small incremental innovations, PAEs prefer the injunctive regime because negotiated license fees are higher. For higher value innovations, license fees are lower in the injunctive regime and PAEs would prefer the fee-based regime, contrary to the presumption that injunctive regimes necessarily favor PAEs
Keywords: License fee bargaining | Patent litigation | Patent trolls | Royalty
How does liability affect prices? Railroad sparks and timber
بدهی چگونه بر قیمت ها تأثیر می گذارد؟ جرقه و چوب راه آهن-2020
This paper analyzes how judicially-determined liability assignments affect valuations and prices. On two occasions in 2007, a railway company caused a fire to break out in the State of Washington. The two fires burned down some of the neighboring properties’ timber. These two incidents led to two companion court cases that made it all the way to the Washington Supreme Court. The court rulings, both made on May 31, 2012, held that the railway company was not liable for timber damages under Washington’s timber trespass statute, despite having acted negligently. As a consequence of these decisions, economic theory predicts a decrease in the value of timber in those areas associated with higher risk of fire, and an increase in the value of Washington railway companies. Using a triple difference model and an event study, we test and find evidence supporting this prediction.
Keywords: Liability | Property rights | Law and economics | Event study
Authorial control of the Supreme Court: Chief Justice Roberts and the Obamacare surprise
کنترل مقامات دیوان عالی: رابرتز رئیس دادگستری و شگفتی اوباماکر-2020
This article models the interaction of key factors missed in most accounts of Supreme Court decision making – that is, the interaction of the rules of authorship (chief and senior justice authorship rights), authorship utility (in terms of justice reputation, and the chief justice’s legacy), and the constraint of legal doctrines. We model how (1) the chief justices and senior median justices compete for case authorship and have incentives to vote for policy outcomes they do not prefer in order to gain authorship control of the Court’s opinion (and the added reputation and legacy utility that comes with authorship), and (2) legal doctrines may enhance or restrict such behavior. We illustrate the model through a stylized account of the Supreme Court’s 2012 “Obamacare” decision where the deciding vote of Chief Justice Roberts to uphold Obamacare (along with his authorship of the opinion), and the dissenting vote of Justice Kennedy to repeal Obamacare, follow the implications of our model rather than the counter expectations of Supreme Court experts and commentators at the time. The model has implications for interpreting justice voting and authorship behavior and how the design of legal doctrines influence the justices’ votes and opinion authorship.
Keywords: Opinion writing | Supreme Court | Chief justice | Reputation and legacy | Obamacare decision
When the law influences medical practice: Potential impact of the Bouchard-Lebrun ruling on the forensic unit of the Malartic Psychiatric Hospital in Northern Quebec, Canada
هنگامی که قانون بر عملکرد پزشکی تأثیر می گذارد: تأثیر بالقوه حکم بوچارد-لبرون بر واحد پزشکی قانونی بیمارستان روانپزشکی مالارتیک در شمال کبک، کانادا-2020
The attribution of criminal responsibility in the context of substance intoxication is a matter of controversy in forensic psychiatry. In 2011, the Supreme Court of Canada ruled that Tommy Bouchard-Lebrun was guilty in the straightforward case of a crime committed while in a state of substance-induced psychosis by an individual without a history of mental disorder. However, the ruling may since have served as a precedent also for settling cases where an offence is committed while in a certain state of intoxication and where there is much more diagnostic uncertainty. The goal of our research was to study the impact of the Bouchard-Lebrun Supreme Court decision on rates of criminal responsibility judgements and toxic psychosis diagnosis in the context of such cases. Applying a time-trend ecological study design, we conducted a chart review of every patient treated at the forensic unit of the Malartic Psychiatric Hospital in northern Quebec in the short periods pre- and post-ruling. We then determined the proportion of patients judged not criminally responsible and the proportion diagnosed with substance-induced psychosis. We ran chi-squared tests on the two sets of dichotomous variables. In the period following the Bouchard-Lebrun ruling, a statistically significant decrease was observed in the proportion of individuals judged not criminally responsible, as was a statistically significant increase in the proportion of individuals diagnosed with substance-induced psychosis. The findings suggest that the Bouchard-Lebrun ruling may have had an impact on subsequent forensic psychiatry decision-making and treatment at the Malartic Hospital.
Keywords: Psychiatry | Diagnosis | Forensic | Criminal responsibility | Substance-induced psychosis
An empirical study of actions on custodianship in Hungary
مطالعه تجربی اقدامات مربوط به حضانت در مجارستان-2020
Our research on the operation of legal institutions related to the restriction of the legal capacity of adults (custodianship and supported decision-making) started in December 2019. Our present analysis of case law on custodianship and supported decision-making is based on cases published in the Collection of Court Decisions. The adoption of the new Hungarian Civil Code has clearly had a significant effect on the court decisions, as it made it compulsory to designate the categories of decisions to which a partial restriction on legal capacity ap- plies. However, the change in regulation also implies a change of attitude that is considerably less apparent in the cases. In the context of international human rights expectations, any limitation of legal capacity should be applied as circumspectly as possible, and only in the most necessary cases. In the examined cases, the efforts of the Curia (the Hungarian Supreme Court) to reinforce this change of attitude in court practice may be detected but they are not extensive. At the same time, the spirit of the UN Convention on the Rights of Persons with Disabilities (CRPD) is not clearly reflected in court practice, and supported decision-making is not seen by courts as a real alternative to custodianship. Regarding the processes of the analyzed disputes, we found that the procedures in the published cases are relatively short, the higher courts in most cases upholding the decision of the lower courts, and that there is no legal or critical evaluation of any expert opinion. In a number of cases, the dominant function of custodianship is not the protection but the restriction of the rights of the given person and - against its declared goal - it serves to protect the interest of others. For example, property issues and the pro-tection of the financial interests of family members are given priority in the published cases. In addition, there were several cases in which the authorities themselves sought to be ‘protected’ by limiting the capacity of the person to initiate official and judicial proceedings.
Keywords: Surrogate decision making | Custodianship | Guardianship | Supported decision making | Case law analysis | Hungary
Law or strategic calculus? Abstention in the Argentine Supreme Court
قانون یا حساب استراتژیک؟ رای ممتنع در دیوان عالی آرژانتین-2020
tAbstention theory suggests that self-interest leads voters to abstain. While this theory has been studiedin different settings, abstention in courts has received scant attention. Jacobi and Kontorovich (2014)hypothesize that stare decisis renders abstention theory inapplicable to courts. We test this predictionempirically using data from the Argentine Supreme Court. Consistent with abstention theory, we showthat Justices whose vote is pivotal have a lower probability of abstention than non-pivotal ones. In con-trast, we fail to find evidence in support of the probability of abstention being positively related to appealswithout stare decisis implications.
Keywords:High court | Abstention | Rational choice | Strategic | Precedent
The case against ‘Narrow’ price parity clauses
پرونده علیه شروط برابری قیمت "باریک":-2020
Authors: Price parity clauses have received significant amount of attention from both aca- demics and antitrust agencies. The predominant view is that ‘narrow’ parity clauses are not as pernicious as ‘wide’ parity clauses and they are necessary to restrict free-riding; for instance, free-riding of hotels on Online Travel Agents’ (OTAs) efforts. This paper chal- lenges this understanding. The paper builds upon a recent investigation report from the Bundeskartellamt in Booking.com case that empirically shows the insignificance of free- riding in the market for online hotel intermediation. With explicit reference to these empir- ical findings the German Supreme Court (BGH) has rejected a justification of narrow parity clauses and declared them as illegal. In the absence of a free-riding argument, the theory of harm that ‘narrow’ parity clauses stifle intra-brand competition between different distribu- tion channels and foreclose the market for the brokerage of hotel rooms through OTAs does not meet any justification. Additionally, the paper argues that even in the presence of free- riding, the transfer of wealth from hotels to OTAs is unjustified as ‘narrow’ parity clauses incentivise OTAs more than the risk they undertake.© 2021 The Author(s). Published by Elsevier Ltd. All rights reserved.
Keywords: Most favoured nation clauses | Price parity clauses | Narrow MFN | Booking.com | Antitrust | Competition law
Alberta not criminally responsible project: Part 1: Comparing the rates of incoming NCRMD persons and absolute discharges before and after Swain and Winko
آلبرتا پروژه مسئولیت کیفری ندارد: قسمت 1: مقایسه نرخ افراد NCRMD ورودی و ترخیص مطلق قبل و بعد از Swain و Winko-2020
The Canadian forensic mental health system was transformed following the two landmark Supreme Court of Canada cases of Regina v. Swain (1991) and Winko v. British Columbia (1999). The Swain decision led to the creation of a new forensic mental health system that moved towards balancing the needs of the patient with the safety of the public. The Winko decision ruled that review boards had to release all persons who did not pose a significant threat to the safety of the public, even persons whose threat level was uncertain. In this article, the authors conducted 20- year pre-post analyses for incoming not criminally responsible persons following the Swain decision and absolute discharges following Winko. The results indicated that there was a statistically significant increase of new/incoming NCRMD cases post-Swain and a statistically significant in- crease of absolute discharges post-Winko.
Keywords: Swain | Winko | NCRMD | Not criminally responsible | Review board
Violence against health professionals and facilities in China: Evidence from criminal litigation records
خشونت علیه متخصصان و امکانات بهداشتی و درمانی در چین: شواهدی از سوابق دادرسی کیفری-2019
Objectives: This study aims to extend the current understanding of violence against health professionals and facilities in China, with data from an authoritative, national-representative, but under-researched data source – litigation records, and discuss implications for developing violence prevention strategies. Design: We collected all legal cases relevant to violence against health professionals and facilities from criminal ligation records released by the Supreme Court of China from 2010 to 2016. Main outcome measures: (i) Characteristics of perpetrators: gender, age, education, occupation, history of mental illness and alcohol; (ii) characteristics of victims: medical specialization, location, type of violence; (iii) outcome of treatment. Results: 140 cases were collected for analysis. Beating, pushing, verbal abuse, threatening, burning mock paper money, placing a corpse in the hospital, hanging banners, blocking hospital gates and doors, and smashing hospital property were the most frequently reported types of violence. Specifically following patient deaths, the interval between a patients death and violence by the patients families and friends was short, with 51% happening on the same day. Conclusions: Our study provides a comprehensive overview of violence against health professionals and facilities in China, which can be used to inform the development of prevention strategies.
Keywords: Violence against health professionals | Criminal litigation records | Health system reform | Health policy
Re-evaluating post-conviction disclosure: A case for ‘better late than never’
ارزیابی مجدد افشای محکومیت پس از محکومیت: پرونده ای برای "دیر رسیدن بهتر از هرگز نرسیدن"-2019
The recent instances of fundamental failings in pre-trial disclosure should also place systemic procedures for post-conviction disclosure firmly in the spotlight. Drawing on the authors’ experience of working on university miscarriage of justice projects, this paper will argue that the UK Supreme Court decision in R v Nunn must be revisited to strengthen the duty of disclosure of material post-trial, and to provide sanctions for authorities that fail to comply. In the current climate of austerity, there is increasing reliance on student projects and other similar organisations to assist appellants post-conviction; it is necessary to determine what their role should be and what rights they might have to access material on behalf of defendants. The article concludes by suggesting that fairness demands for consideration to be given to proposals in the “Open Justice Charter,” which is a document drafted by several academics and practitioners in the field of criminal appeals.
Keywords: Criminal disclosure | Post-conviction disclosure | Miscarriages of justice | Innocence projects