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The article explores the statutory shrinking and stretching of the Emergency Medical and Labor Treatment Act (EMTALA) through judicial decisions in the U.S. It discusses the lack of substantive screening requirements put on hospitals and decide how the statutory erodes the Hippocratic Oath has threatened patients. It critiques the decision of the Supreme Court in Roberts v. Galen and asks whether it flies in the Congressional aim's face.

Current patent venue transfer laws under 28 U.S.C. § 1404 (a), e.g., the Gilbert factors from GulfOil Corp. v. Gilbert, 330 U.S. 501 C 1947), are too malleable in that they often lead to frequent mandamus orders from the U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") overturning district court rulings on venue transfer motions. Thus, this paper proposes a more robust two-step burden-shifting framework that replaces the eight Gilbert factors. Moreover, a brief history of venue transfer patterns in the seven most active federal patent district courts is covered, with a special focus devoted to the venue transfer orders from Judge Alan D. Albright ofthe U.S. District Court for the Western District ofTexas. A comprehensive data summary offorty-five case sets where the Federal Circuit ruled on writs ofmandamus involving Judge Albright's transfer orders is subsequently provided, with coverage summaries of certain cases, including four precedential ones from the Federal Circuit. This proposed two-step burden-shifting framework is then applied to these venue transfer cases, as well as Federal Circuit mandamus orders ruling on those decisions. Finally, alternative approaches to remedying the frequent reversals of venue transfer decisions will be discussed, including potential legislative solutions, adjustments to common law approaches to venue transfer, deference to the inherent powers of an Article III U.S. District Judge, and a unified federal patent district court. Overall, this paper seeks to offer a more robust and consistent two-step burden-shifting framework for venue transfer and for the Federal Circuit to follow in administering mandamus orders, which might change somewhat in light of Western District of Texas Chief Judge Orlando Garcia's order on redistributing Judge Albright's patent cases. It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair. we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way-in short. the period was so far like the present period, that some of its 110isiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only. --Charles Dickens, opening of the novel A Tale of Two Cities "Jurisdiction is not given for the sake of the judge, but for that of the litigant." -- Blaise Pascalz [ABSTRACT FROM AUTHOR]

This Paper is a reaction to AWE v. Goldsmith (Warhol), which found that Warhol's adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol's use, while the dissent emphasizes the artistically transformative quality of Warhol's adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of thefair use doctrine. That need was largely met by Gordon's article in 1982. I aim to develop the economic theory of fair use further. especially in light of case law since 1982. A theory of fair use is at the same time a theory of the scope of copyright. I clarify the economic basis for jair use, taking advantage of basic concepts in welfare economics. As a general matter, the optimal scope of copyright minimizes the sum of dynamic (having to do with incentives over time) and static (having to do with allocation at a given time) welfare costs. One proposition advanced is that the concepts of economic complementarity, substitutability, and preference correlation provide crucial analytical tools in resolving fair use disputes. This proposition may seem narrow, but it stands the approach taken in the cases on its head. I explain how the approach urged here works ** by applying it to several cases, including Warhol and Google v. Oracle. [ABSTRACT FROM AUTHOR]

Commentators have identified that one of the most significant problems in current MDL practice is the lack of judicial authority over non-class aggregate settlements. This paper explores the use of the All Writs Act to provide MDL judges with robust authority to manage, supervise, and ultimately review non-class aggregate deals that are the object of much recent criticism. It rejects the thesis that judicial supervision of non-class settlements is unwarranted because these deals are contractual, and that oversight therefore removes claimant autonomy and damages the adversarial system. Several MDL judges already have invoked the All Writs Act to police parallel class action settlements that might jeopardize pending MDL negotiations. This paper explores and endorses the argument that MDL judges may, with equal force, exercise power pursuant to the All Writs Act to police pending non-class settlements in their jurisdiction. As the MDL non-class settlement paradigm has evolved, some MDL judges have sought to intervene in settlement activities by invoking authority pursuant to three theories: (1) the quasi-class action, (2) the inherent powers of the court, and (3) the All Writs Act. As critics note, the quasi-class action and inherent judicial power have provided weak support for judicial intervention in non-class aggregate settlements. But to date, commentators have paid scant attention to judicial power under the All Writs Act or its use in MDL proceedings. The explosion o f the MDL docket in the twenty-first century represents the most notable paradigm shift in the American legal landscape in several decades. Currently, the MDL panel assumes jurisdiction over almost all emerging aggregate mass tort and small claims consumer actions. With this marked proliferation o f MDL proceedings, commentators have signaled various growing concerns with the MDL resolution o f large-scale collective disputes. In particular, critics have focused on issues relating to non-class aggregate settlements accomplished under MDL auspices. The MDL statute provides judges with authority to supervise and manage coordinated pre-trial proceedings, but little else. Historically, MDL proceedings have proven effective vehicles fo r resolving mass disputes through class action settlements, subject to Rule 23 requirements and constraints. Currently, however, attorneys have pivoted to resolving aggregate disputes through nonclass settlements that are negotiated and consummated outside class action procedures, which relieves parties o f Rule 23 judicial supervision, oversight, and review. The MDL statute provides scant authority fo r judicial oversight o f non-class aggregate settlements. This shift to non-class settlements has inspired concern regarding the substantive, procedural, and ethical dimensions o f these deals. A major debate centers on the question o f judicial authority in the non-class settlement arena and this paper seeks to provide that authority by focusing on judicial power under the All Writs Act. [ABSTRACT FROM AUTHOR]

The calculation of patent damages lies at the epicenter of patent policy, yet it remains one of the most contentious issues in all of intellectual property law. The dominant legal framework equates a reasonable royalty, the most prevalent patent damage award, to a hypothetical negotiation between the parties at the time infringement began. Commentators and courts generally agree that existing comparable patent licenses, which represent arm 's-length transaction between two unrelated private parties that places a monetary value on the patent, are highly probative in determining a reasonable royalty. The lack of publicly available licensing data, however, limits the ability of courts to identity appropriate comparable licenses. In this paper, we argue that there is a large untapped trove of information on existing patent licensing agreements, many of which are likely more probative to reasonable royalty calculation than currently existing licensing data offered by patent damage experts. This novel source of data is tax-related "transfer prices. ". [ABSTRACT FROM AUTHOR]

The U.S. Supreme Court decided two cases in Spring 2015--Young v. United Parcel Service, Inc. and EEOC v. Abercrombie & Fitch Stores, Inc.-under Title VII. The plaintiffs in both cases believed that their employers had discriminated against them because they were members of a protected class-pregnant women in the former and religious believers in the latter. Both plaintiffs were seeking minor modifications to workplace policies as accommodations. And in both opinions, handed down within a few months of each other, the Court used the language of favoritism to discuss whether the plaintiffs should prevail and what analysis should be employed. The manner in which the Court used the language of favoritism, however, could not have been more different. In the case of pregnancy, the Court soundly rejected that pregnant employees were entitled to any favored treatment, bending over backwards to avoid a ruling that pregnant employees were part of a "most favored" class. In the case of religion, the Court took the exact opposite approach, declaring that religious plaintiffs enjoyed "favored treatment." This is despite the fact that Title VII provides no explicit textual support for such a distinction. In the absence of such a statutory explanation, what is really behind this difference in approach? This paper explores one potential answer to this question-that these decisions reflect the Court's underlying belief in the paramount importance of the right to spiritual autonomy over and above the importance of a right to physical autonomy. Further, it explores how allowing such a hierarchy, between a right to spiritual autonomy on the one hand and a right to physical autonomy on the other, to animate judicial decisions is both inherently gendered and disproportionately harms women. It concludes by analyzing whether such a hierarchy of rights is reflective of lived experience and discussing possible alternative frameworks for analyzing such claims. [ABSTRACT FROM AUTHOR]

The article presents several papers discussed during a panel discussion on "Current Issues in Judicial Disqualification" sponsored by the Association of American Law Schools (AALS) Section on Litigation in the U.S. It highlights the critical role of the judicial branch of government to the country's stability. It discusses the federal recusal scheme and the call for First Amendment protection for lawyers who impugn judicial integrity in the context of recusal motions.

The article discusses U.S. paper currency and its implications in individual due process rights, with reference to the case of American Council of the Blind v. Paulson. In the case, the D.C. Circuit held that the visually impaired lack meaningful access to U.S. currency and that this violates a section of the Rehabilitation Act. It claims that the controversy over the currency's discriminatory nature should be framed and resolved on due process grounds. It states the system of currency violates the due process rights of the visually impaired. It suggests that the case shows a missed opportunity for disability-rights law to move beyond past disappointments.

The article presents an introduction to papers on litigation that appear in this periodical.

Settlements reached in 2005 in securities litigation involving Enron and WorldCom highlighted the financial risks faced by outside directors of public companies. We argue elsewhere that Enron and WorldCom, as instances where directors made damages payments out of their own pockets, are and likely will remain exceptional in the United States. In this paper, we show that the risk of out-of-pocket payment is likewise very low on a cross-border basis, in both common law and civil law countries. The largest source of risk is efforts by government agencies to make an example of particular directors, even when the cost of doing so likely exceeds the financial recovery. We study Britain and Germany in depth and offer summaries of the position in Australia, Canada, France, and Japan. We find that while specific laws quite often differ, there is substantial functional convergence. In each country we analyze, due to a combination of substantive law. procedural rules, and market forces, the out-of-pocket liability risk faced by outside directors of public companies is similar--present but very small. We draw upon our cross-border analysis to assess the legal risks outside directors can expect to face going forward, both in the United States and elsewhere. We also briefly consider whether the current approach reflects sensible public policy. [ABSTRACT FROM AUTHOR]

The U.S. Supreme Court has long sustained laws that treat minors as an exceptional class as long as the distinction is reasonable. Minors often receive added legal protections or leniencies. They are also sentenced in their own juvenile court systems and are exempt from the death penalty. The focus of this paper is symbolic gestures, communication, and expression by primary and secondary school students. The thesis is not concerned with actual assaults, vandalism, and other obviously unacceptable and disruptive behaviors. Three leading Supreme Court cases explore the greater limits and controls of students' free expressions inside educational settings: "Tinker v. Des Moines Independent Community School District," "Hazelwood School District v. Kuhlmeier," and "Bethel School District No. 403 v. Fraser."