Current Issue

Articles

A Market for Sovereign Control
Joseph Blocher & Mitu Gulati
PDF

Can popular sovereignty and sovereign territory coexist? Can countries exchange sovereign territory consistently with the principle of self-determination? What if countries’ rights to territorial integrity were predicated on corresponding duties to govern well? And can the international system provide mechanisms and incentives to improve the status quo?

These questions are not simply academic. Across the world, many regions are located in the wrong nations—wrong in the sense that the people of these regions believe they would be safer, happier, and wealthier if surrounded by different borders and governed by different leaders. Such people might be able to improve their lot by emigrating or voting out their current government, but those are imperfect solutions and are often unavailable to those who need them most. We ask how international law could help ameliorate the bad-government problem by facilitating welfare-enhancing border changes.

Patent Law’s Reproducibility Paradox
Jacob S. Sherkow
PDF

Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible—their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but also legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine hamper or even actively dissuade reproducible data in patents. This Article assesses the difficulties in reconciling these basic goals of scientific research and patent law. More concretely, it provides several examples of irreproducibility in patents on blockbuster drugs—Prempro, Xigris, Plavix, and Avastin—and discusses some of the social costs of the misalignment between good clinical practice and patent doctrine. Ultimately, this analysis illuminates several current debates concerning innovation policy. It strongly suggests that a proper conception of enablement should take into account after-arising evidence. It also sheds light on the true purpose—and limits—of patent disclosure. And lastly, it untangles the doctrines of enablement and utility.

Notes

Safeguarding the ADA’s Antidiscrimination Mandate: Subjecting Arrests to Title II Coverage
Shanna Rifkin
PDF

The news has been peppered with tragic stories of individuals with disabilities who have been killed or injured following police encounters. In the aftermath of these incidents, as injured parties seek accountability, a question looms: Can arrest proceedings violate the Americans with Disabilities Act?

The ADA was enacted to prohibit disability discrimination. The law had an ambitious agenda, supported by broad statutory authority, to ensure equality in all areas of public life for individuals with disabilities. But while the ADA has fostered integration into many aspects of modern life, one area remains deeply contested: arrests.

If Congress envisioned that Americans with disabilities would enjoy lives free from discrimination, excluding arrests from ADA coverage undermines the law’s broad promise of protection. In 2015, a Supreme Court opinion raised but failed to resolve this very issue, leaving an important question unanswered. This Note examines whether arrest proceedings must comply with the ADA and argues that they should. It then proposes comprehensive disability training as a tool to aid ADA compliance and avoid discriminatory arrest proceedings.

Giving Vulnerable Students Their Due: Implementing Due Process Protections for Students Referred from Schools to the Justice System
Meredith S. Simons
PDF

There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.

This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.

Current Issue

Articles

A Market for Sovereign Control
Joseph Blocher & Mitu Gulati
PDF

Can popular sovereignty and sovereign territory coexist? Can countries exchange sovereign territory consistently with the principle of self-determination? What if countries’ rights to territorial integrity were predicated on corresponding duties to govern well? And can the international system provide mechanisms and incentives to improve the status quo?

These questions are not simply academic. Across the world, many regions are located in the wrong nations—wrong in the sense that the people of these regions believe they would be safer, happier, and wealthier if surrounded by different borders and governed by different leaders. Such people might be able to improve their lot by emigrating or voting out their current government, but those are imperfect solutions and are often unavailable to those who need them most. We ask how international law could help ameliorate the bad-government problem by facilitating welfare-enhancing border changes.

Patent Law’s Reproducibility Paradox
Jacob S. Sherkow
PDF

Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible—their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but also legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine hamper or even actively dissuade reproducible data in patents. This Article assesses the difficulties in reconciling these basic goals of scientific research and patent law. More concretely, it provides several examples of irreproducibility in patents on blockbuster drugs—Prempro, Xigris, Plavix, and Avastin—and discusses some of the social costs of the misalignment between good clinical practice and patent doctrine. Ultimately, this analysis illuminates several current debates concerning innovation policy. It strongly suggests that a proper conception of enablement should take into account after-arising evidence. It also sheds light on the true purpose—and limits—of patent disclosure. And lastly, it untangles the doctrines of enablement and utility.

Notes

Safeguarding the ADA’s Antidiscrimination Mandate: Subjecting Arrests to Title II Coverage
Shanna Rifkin
PDF

The news has been peppered with tragic stories of individuals with disabilities who have been killed or injured following police encounters. In the aftermath of these incidents, as injured parties seek accountability, a question looms: Can arrest proceedings violate the Americans with Disabilities Act?

The ADA was enacted to prohibit disability discrimination. The law had an ambitious agenda, supported by broad statutory authority, to ensure equality in all areas of public life for individuals with disabilities. But while the ADA has fostered integration into many aspects of modern life, one area remains deeply contested: arrests.

If Congress envisioned that Americans with disabilities would enjoy lives free from discrimination, excluding arrests from ADA coverage undermines the law’s broad promise of protection. In 2015, a Supreme Court opinion raised but failed to resolve this very issue, leaving an important question unanswered. This Note examines whether arrest proceedings must comply with the ADA and argues that they should. It then proposes comprehensive disability training as a tool to aid ADA compliance and avoid discriminatory arrest proceedings.

Giving Vulnerable Students Their Due: Implementing Due Process Protections for Students Referred from Schools to the Justice System
Meredith S. Simons
PDF

There are two primary ways that schools can funnel children into the “school-to-prison pipeline.” The first is by simply removing children from school via expulsions and suspensions, which increase students’ chances of dropping out and getting in trouble with the law. The Supreme Court, recognizing the serious consequences of being forced out of school, has held that expulsions and long-term suspensions constitute deprivations of students’ property interest in their educations and liberty interest in their reputations. Thus, schools seeking to expel or suspend students must provide them with basic due process protections. But schools can also refer students directly to the justice system by having police officers arrest students or issue citations at school. Under current law, these students are not entitled to any due process protections at the point of arrest or referral.

This Note argues that the absence of due process protections for students who are arrested or referred to the justice system at school is incompatible with the Supreme Court’s procedural due process jurisprudence in general and its decision in Goss v. Lopez in particular. The same property and liberty interests that the Court identified as worthy of protection in Goss are implicated by in-school arrests and referrals. Therefore, school administrators who intend to have a child arrested or referred to the justice system should be required to provide students with oral notice of the accusation against them and an opportunity to respond. After an arrest or referral, the school should provide students and their parents with written notice of the arrest or referral and the rationale for the action. These measures will not unduly burden administrators or schools, but they will provide meaningful protections for students.