- Boston University School of Law: David Dana (Northwestern), "Using the Veil of Ignorance to Ensure Justice in Class Actions: A Rawlsian Approach to Adequacy of Representation" (This is the SSRN version of the paper, which may differ from the one presented at BU). Here is a taste:
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In both federal and state practice, judges must certify class actions for the class actions to proceed, and must approve class settlements for those class settlements to have any legal effect.1 Judges may or may not make explicit findings regarding the adequacy of representation class members received, but even where then are no explicit findings, judicial certification of a class and approval of a class settlement arguably implies a finding of adequacy of representation.2 Why then should class members ever be able to challenge the settlement in subsequent actions? Why should they not be bound to the settlement if a court explicitly, or even just implicitly, has held that they were adequately represented in the process that produced the settlement?
To answer that question, we must first unpack the concept of “adequate representation.” Adequacy of representation in the class context cannot mean what it means in non class litigation – that the lawyer faithfully attend to the client ’s interest, advise the client of the various options available to her, and give her the opportunity to make the ultimate decisions about whether to accept or reject a settlement offer. In the non-class-action litigation context, the client is actually present, or at least could be if she so chooses. It seems reasonable, therefore, that the law hold her to the choices she made even if those choices result in different consequences from those that she anticipated.4 In the class action context, the client –the class members or at least almost all of them – are not present ; indeed, many class members are never even aware of the existence of the class litigation to which they are, in theory, a party. They are represented only virtually, by means of class representatives. And since class representatives are almost always nominal actors,5 the absent class members are in truth represented only by class counsel, acting, typically, with minimal or no real client input.
I read an earlier version of the paper, which is highly recommended!
Columbia Law & Economics: Gideon Parchomovsky, University of Pennsylvania Law School, "Patent Porfolios," Co-authored with Polk Wagner. Here is the abstract:
This article presents a new theory of patent value, responding to growing empirical evidence that the traditional appropriability premise of patents is fundamentally incomplete in the modern innovation environment. We find that for patents, the whole is greater than the sum of its parts: the true value of patents lies not in their individual worth, but in their aggregation into a collection of related patents, a patent portfolio.
The patent portfolio theory thus explains what is known as "the patent paradox": in recent years patent intensity—patents obtained per research and development dollar—has risen dramatically even as the expected value of individual patents has diminished. We find the benefits of patent portfolios to be so significant as to suggest that firms' patenting decisions are essentially unrelated to the expected value of individual patents; because patent portfolios simultaneously increase both the scale and the diversity of available marketplace protections for innovations, firms will typically seek to obtain a large quantity of related patents, rather than evaluating their actual worth. The result—which we find widely recognized in commercial circles—is that the modern patenting environment exhibits (and requires) a high-volume, portfolio-based approach that is at odds with scholars' traditional assumptions.
The implications of the patent portfolio theory are important and widespread. First, the explanatory power of the theory allows resolution of not only the patent paradox, but many of the otherwise-puzzling observable patterns in the modern patenting environment—such as firm-size differences in patent intensity and litigation rates. Second, the patent portfolio theory neatly complements the prior theories that have sought to explain modern patent value, strengthening their relationship with the reality of patenting behavior—and confirming that the value of patents has expanded beyond traditionalist notions. Third, the patent portfolio theory allows a number of important predictive insights into future trends in the patent system, allowing policymakers and scholars to frame their inquiry within a range of likely outcomes. In our analysis, the patent portfolio theory does not suggest a better, brighter future for the patent system, but does build a foundation for the important academic and policy-related work that springs from this initial treatment.
