Articles
Patent Monopsonies
Roy Baharad & Gideon Parchomovsky | PDF
Conventional wisdom perceives patent protection as a necessary evil. Patent protection, the argument goes, raises the prices of patented products and processes, thus restricting access to innovation. But without it, not enough innovation will be produced. Hence, generations of scholars have sought ways to curb the market power of patentees via various legal interventions, such as prizes, compulsory licenses, and other forms of regulation. All have tacitly assumed that eroding the market power of patentees would result in a competitive market for innovation that would put an end to the allocative inefficiencies and distributional inequities that emanate from patent protection.
The present Article sets out to challenge the accepted understanding of innovation, showing that patentholders ordinarily operate in markets of monopsonistic nature, namely, markets characterized by a single purchaser or a highly concentrated demand side. Crucially, this finding involves the most prominent patent-inhabiting industries, including pharmaceuticals, agriculture and biotechnologies, defense technologies, infrastructural equipment and other sectors. The existence of monopsonies in markets for patented technologies implies that commentators have thus far overlooked the actual structure of the marketplace for patents, which routinely features a bilateral monopoly: a single seller along with a single buyer. After highlighting this phenomenon and assessing its pervasiveness, this Article introduces a blueprint for analyzing patent monopsonies. It shows that under extant market structure, the monopsonistic counterforces may reinstate competitive pricing of inventions, whereas in other cases, the presence of patent monopsonies might prove disadvantageous to society at large.
The new market picture this Article portrays gives rise to several important policy implications. First, it shows that the high prices consumers pay in some industrial sectors are due to the existence of monopsonies, not patents. Second, in contrast with conventional wisdom, it counsels against the use of compulsory licenses in monopsonistic industries because they reduce innovation without generating any real benefits to consumers. Third, it demonstrates that the existence of monopsonies is a core reason for suppression, non-commercialization, and distortion of innovation. It also discusses legal interventions that can help alleviate this problem.
Pragmatic Textualism
Brian G. Slocum & Kevin Tobia | PDF
Traditional textualism instructs judges to adhere to a statute's linguistic meaning and reject as irrelevant its interpretive consequences. Justice Scalia famously contrasted his restrained textualist judge with "Mr. Fix-It," a judge who inappropriately weighs consequences. Today, however, textualists increasingly embrace consequentialist reasoning. This Article documents this undertheorized shift and the emerging textualist efforts to justify it, including Justices Kavanaugh and Barrett's arguments for nonliteralism and judicial sensitivity to context. This Article critiques these efforts: Modern textualist theory lacks a compelling explanation for its newfound reliance on interpretive consequences.
Next, we offer a novel theory of the linguistic role for interpretive consequences in determining word meanings. The theory, which we term the "bounded indeterminacy theory," is an aspect of a broader theory of "pragmatic textualism." Pragmatic textualism seeks to explore how context informs the linguistic meanings of statutes. The bounded indeterminacy theory explains one aspect of context-specific interpretation, which is that interpretive consequences help determine the linguistic meanings of statutory terms.
We test the bounded indeterminacy theory, presenting an empirical study to assess whether and how ordinary people (N = 2,185) integrate consequences into their understanding of linguistic meaning. An empirically supported bounded indeterminacy theory provides various benefits to legal interpretation theory and practice. It offers a superior explanation for some of the Court's recent interpretations, demonstrates the interconnectedness of textualism and purposivism, supports some of the Court's current interpretive principles but not others, and illustrates the near obsolescence of the absurdity doctrine.
Notes
Incubators of Innovation: Finding a Place for Title IX in Religious Charter
Schools
Emily Bass | PDF
Since the early 1990s, many people across the country have embraced charter schools as "incubators of innovation." Charter schools are publicly funded, tuition-free, K–12 schools that have more flexibility than traditional public schools in curriculum, staffing, and more. With this flexibility, charter schools constantly test new approaches, aiming to inspire educational reform.
In recent years, some have begun calling for a new kind of charter school: the religious charter school. In May 2025, the Supreme Court deadlocked in Oklahoma Statewide Virtual Charter School Board v. Drummund, a case involving St. Isidore, the nation's first explicitly religious charter school. For the time being, St. Isidore is not permitted to operate. But because the current Court has consistently held favorably for religious litigants in education cases, advocates for religious charter schools have not lost hope. Instead, they expect a more favorable result from the Court in the coming years that would permit religious charter schools nationwide.
With religious charter schools come a host of constitutional issues and concerns about students' rights. One relevant concern is Title IX’s Religious Exemption. The Religious Exemption shields religious schools from students' Title IX claims—and the breadth of protections under the Religious Exemption has expanded in recent years. Accordingly, this Note proposes changes in how Congress, OCR, and courts construct and apply the Religious Exemption to protect students in religious charter schools. After all, if advocates for religious charter schools want to provide students meaningful opportunities to learn alongside people who share their faith, they must also protect those students from sex-based harassment and unreasonable discrimination.
Perfect Strangers: Improving Access to Justice by Regulating Third-Party
Litigation Funding and Forced Arbitration
Benedict W. Luongo | PDF
The rising cost of litigation and the Supreme Court's expansion of forced arbitration leave vast swaths of consumers and civil rights plaintiffs without an adequate path to the only forum with the independence to fairly decide controversies: courts. This access-to-justice gap presents an opportunity for third parties seeking to profit from litigation to provide funding to support plaintiffs' litigation costs in exchange for an interest in the judgement or settlement. But third-party litigation funding mostly benefits businesses, and it does not help plaintiffs overcome forced arbitration. Many who acquire third-party funding realize that they are victims of a new form of aggressive and underregulated subprime lending. Moreover, several cases involving third-party funding reveal conflicts of interest resulting from funding agreements. This Note shows how harms from third-party funding and forced arbitration lead to both material abuses of consumers and a lack of transparency in dispute resolution. Congress must corral these twin harms to prevent further erosion of courts' perceived legitimacy. Joining current proposals for regulation of third-party litigation funding and restrictions on forced arbitration will enable Congress to cut through the gridlock and restore the reputation of federal courts by opening the doors to claimants.