Virtual currencies demanded serious attention in 2017 due to public interest, media attention, and investor appetite. With this increased attention on virtual currencies comes significant business, legal, and tax risks. This article serves as a launching pad for those tax risks, and attempts to predict how the IRS will react. By focusing on the IRS’s treatment of virtual currency...
The European Union’s General Data Protection Regulation is the most comprehensive, far-reaching, and forward-thinking piece of legislation to be passed in recent history. The GDPR will set the European Union far ahead of the United States when it comes to protecting personal information, but fear not; many of the GDPR’s requirements reach across the Atlantic and will offer a...
The United States followed a path of initially giving little protection to intellectual property (IP) so that the country could benefit from the IP of nations we term earlier-movers on the world stage of economic development. This symposium piece argues that Japan and China have been following a similar trajectory in their intellectual property laws while progressing on their own...
From a glimmer in the eye of a Victorian woman ahead of her time, AI has become a cornerstone of innovation that “will be the defining technology of our time.” Around 2016, the convergence of computing power, funding, data, and open-source platforms tipped us into an AI-driven 4IR. AI can make a difference in accelerating disruptive innovation by bringing a data-driven approach...
In its May 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court reined in the Federal Circuit’s permissive venue standard, which had fueled the rise of the Eastern District of Texas as the busiest patent trial court in the nation and the preferred filing location of patent assertion entities (PAEs), derisively known as patent trolls. While the new...
When judges decide trademark cases, they often must balance trademark rights against interests in free expression. The defense known as “classic” or “descriptive” fair use embraces the foundational themes that make trademark conflicts so compelling. By design, the defense pits fair competition and free speech against a mark owner’s right to control its story, reputation, and...
The state of the law in the United States is complicated by the fact that the de minimis doctrine is, and has been a muddled doctrine. Copyright law and patent law allow future authors and inventors to build upon the works of previous rights holders. In the patent world, the new work must be a non-obvious improvement on the original patent. In copyright, the key is that the...
In this article, we discuss what we consider to be the ten important and influential biotechnology patent law judicial decisions of 2018. These hinged on a variety of patent doctrines. An abbreviated new drug application (ANDA) for the multiple sclerosis drug Ampyra set the stage for the Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc. (Fed. Cir. 2018) decision, in which...
This article anticipates doctrinal disorder in domain name disputes as a result of the new generic top-level domains (gTLDs). In the course of the intense and prolonged debate over the possibility of new gTLDs, no one seems to have focused on the conspicuous fact that domain name disputes incorporating new gTLDs will be markedly different from the first-generation domain name...
On the occasion of the 80th anniversary of the Supreme Court's famous decision in Erie Railroad v. Tompkins, this article explores the consequences of that decision on the development of unfair competition law in the United States. It details efforts by lawyers and legislators to grapple with those consequences and provides an overview of the evolution of unfair competition law...
This article examines how the Federal Circuit addresses state commercial and contract law in its patent law jurisprudence. Instead of deferring to state law, the court creates its own federal common law of contracts and assignments, creating parallels with the debates arising from the 1938 Erie decision. This federal common law is inconsistent with the need for uniformity in the...
Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every I.P. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v...
The Supreme Court regularly faces Erie issues involving the displacement of state law by a Federal Rule of Civil Procedure. Under Hanna v. Plummer, federal rules displace state law if they were intended to apply to the matter at issue and are valid. But in such cases, the Court has already encountered the rule once before, at the time it adopted the rule and transmitted it to...
Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to...
This paper explores the permission that the Erie decision granted to federal courts to inject themselves into the dynamics of state law change. Following Erie’s mandate, a federal court can sometimes clearly discern the content of state law from a state statute or a recent state Supreme Court decision. Other times, state court precedent is either nonexistent or old and contrary...
Erie's meaning has changed many times during its eighty-year history, and this essay provides a brief intellectual history about those serial transformations. Most modern lawyers have completely forgotten the radicalism of Erie's constitutional reasoning in 1938. The legal process school defanged Erie's original meaning, even as scholars simultaneously redefined the term...
The following is a complete flowchart for Erie problems. Although it differs from past efforts in many respects, perhaps the most important difference is that it accommodates all the jurisdictional contexts in which Erie problems can arise in federal court, not just diversity jurisdiction. My hope is that this flowchart will help demystify Erie, by showing that Erie problems are...
On July 27, 1934, Harry James Tompkins lost his arm, supposedly when an unsecured refrigerator car door on a train operated by the Erie Railroad Company hit him in the head. Tompkins won a $30,000 judgment in federal court, but in Erie v. Tompkins (1938), the United States Supreme Court famously reversed, holding that federal courts sitting in diversity must apply state...
This article addresses how a federal court sitting in diversity jurisdiction should approach remedies issues, particularly where the law-equity divide lingers. Treatment of remedies raises tricky problems for federal judges regarding what law to apply. It matters because of separation-of-powers, federalism, jury trial implications, forum shopping, and fairness to litigants...
Federal courts frequently avoid deciding whether federal or state law governs the availability of injunctive relief for state-law claims by simply declaring that both sets of standards are the same. Although federal and state standards for injunctions often incorporate similar elements, those elements often are phrased in somewhat different terms and relate to each other in...
This essay—presented as the keynote address to the University of Akron School of Law’s conference on “Erie at 80”—considers the impact of the Supreme Court’s decision in Erie Railroad Co. v. Tompkins on the broader landscape of American law. I begin with Erie’s contribution to our modern, positivist understanding of the nature of law. That understanding, however, is under threat...
A decade ago, blockchain technology made its mainstream debut with the introduction of Bitcoin, a cryptocurrency that has generated a lot of buzz in the financial sector. Blockchain’s elegantly simple way of securely and reliably recording data gives the technology the power to disrupt multiple industries. Cryptocurrencies and smart contracts are blockchain’s most common...
United States courts are demanding that businesses break foreign laws at an exponentially increasing rate. A practice that was virtually unheard of only 30 years ago is now so widespread that U.S. courts are ordering foreign lawbreaking in the most trivial discovery matters. When a court receives a discovery request that violates a foreign law, it applies the 5-part Aérospatiale...
Over the past twenty years, the international criminal tribunals have increasingly relied upon expert testimony describing the intergenerational and cultural effects of mass trauma events in their decisions. The admission of such broad, generalized expert testimony is facilitated by permissive rules of evidence and the broad and complex scope of international criminal litigation...
The law of informed consent in medicine has evolved from the original doctrine which required the physician’s disclosure of the risks, benefits, and complications of (and alternatives to) a proposed procedure or treatment. The doctrine now implicates the disclosure of matters personal to the physician. Questions regarding the breadth of the doctrine in other respects have...