Some of today’s top legal thinkers consider the ways that legal thinking has bolstered—rather than corrected—injustice. Bringing together some of today’s top legal thinkers, this volume reimagines law in the twenty-first century, zeroing in on the most vibrant debates among legal scholars today. Going beyond constitutional jurisprudence as conventionally understood, contributors show the ways in which legal thinking has bolstered rather than corrected injustice. If conservative approaches have been well served by court-centered change, contributors to Rethinking Law consider how progressive ones might rely on movement-centered, legislative, and institutional change. In other words, they believe that the problems we face today are vastly bigger than can be addressed by litigation. The courts still matter, of course, but they should be less central to questions about social justice. Contributors describe how constitutional law supported a system of economic inequality; how we might rethink the First Amendment in the age of the internet; how deeply racial bias is embedded in our laws; and what kinds of changes are necessary. They ask which is more important: the laws or how they are enforced? Rethinking Law considers these questions with an eye toward a legal system that truly supports a just society. Contributors include Jedediah Purdy, David Grewal, Jamal Greene, Reva Siegel, Jocelyn Simonson, Aziz Rana

The field of intellectual property (IP) law today is focused, as the name itself advertises, on one particular institutional approach to scientific and cultural production: IP. When legal scholars explain this focus, they typically do so with reference to the virtues of price. Because price gives us a decentralized way to link social welfare to the production of information, IP is alleged to be more efficient than other approaches. The dominant mode of IP scholarship begins here and then addresses questions internal to IP law -- for example, how broad or narrow should exceptions to IP rights be? But the internalism that characterizes the field of IP cannot, as I show, be justified by the value of efficiency. Economics offers us no a priori reason to assume that IP is more efficient than other possible approaches, most prominently government procurement and commons-based production. If we take the invitation that economists offer us to think external to IP, we also gain new insights about the implications of values other than efficiency for the choice between different institutional approaches to scientific and cultural production.We see, as I argue, that using price to guide scientific and cultural production -- which is to say, using IP -- may have costs not only for efficiency, but also for distributive justice and informational privacy. The IP approach is in tension with the value of distributive justice because reliance upon price may yield not only unjust distribution of existing information resources but also unjust production of future information resources. The IP approach is in tension with the value of information privacy because relying on price to generate information facilitates the desire, the demand, and perhaps the capacity for price discrimination. That, in turn, generates an impulse for the extensive collection of personal information. Both government procurement and commons-based production plausibly offer more promise than does IP in both distributive justice and privacy terms, and they may be no less efficient than IP. Giving full scope to all three of these values thus requires us to telescope out from the internalism that characterizes the field, and to countenance a broader role for commons-based production and government procurement. In the field of IP, I conclude, we should pay less attention to IP and more to the alternatives.

When policymakers and academics think about designing optimal innovation incentives, they almost exclusively limit their considerations to alternative types of reward incentives. But in this article, we show that under specific circumstances innovation sticks - potential penalties for failure to innovate - can play a valuable role in our innovation policy, either alone or in conjunction with innovation carrots. What's more, we provide examples of several innovation sticks that already have been used with apparent success, including the Federal Corporate Average Fuel Economy (CAFE) standards. Finally, we apply our approach to a new area to which we think innovation sticks may be well-suited: the problem of car fatalities. Our model suggests that a relatively simple system of yardstick penalties could help reduce national auto fatalities by as much 20%, simply by bringing laggard entities (companies and states) up to the median.

This is an introduction to an edited volume, Access to Knowledge in the Age of Intellectual Property (Zone Press, 2010. It's aim is to describe and analyze the conceptual stakes of the new mobilization around A2K. A2K groups contest the terrain of intellectual property law (for example, around issues of access to medicines, free software, farmers' rights to seeds, and free culture) - but what do they have in common? The chapter elaborates on concepts that A2K thinkers use - such as the commons, openness, and access - to challenge the conventional justification for strong intellectual property law. It closes by posing a series of theoretical questions for the movement, like, what is the nature of the freedom that A2K demands?

The high cost of patent-protected brand-name drugs can strain budgets and curb the widespread use of new medicines. An example is the case of direct-acting antiviral drugs for the treatment of hepatitis C. While prices for these drugs have come down in recent months, they still create barriers to treatment. Additionally, prescribing restrictions imposed by insurers put patients at increased risk of medical complications and contribute to transmission of the hepatitis C virus. We propose that the federal government invoke its power under an existing “government patent use” law to reduce excessive prices for important patent-protected medicines. Using this law would permit the government to procure generic versions of patented drugs and in exchange pay the patent-holding companies reasonable royalties to compensate them for research and development. This would allow patients in federal programs, and perhaps beyond, to be treated with inexpensive generic medicines according to clinical need -- meaning that many more patients could be reached for no more, and perhaps far less, money than is currently spent. Another benefit would be a reduction in the opportunity for companies to extract monopoly profits that far exceed their risk-adjusted costs of research and development.

The upward-ratcheting of patent protection through trade agreements has generated significant concerns about potential effects on prices of drugs and access to medicines in developing countries. The Trans-Pacific Partnership (TPP) included even more extensive pharmaceutical patent provisions than any before. While President Trump withdrew the US as a signatory to the TPP, the potential for new trade agreements to raise the same set of concerns generated by the TPP remains high. Previous work assessing the TPP argued that new data on pharmaceutical expenditures (and other measures) from countries with recent trade agreements with the U.S. indicated that concerns about pharmaceutical patent protection and drug prices are overblown and it may be time to move on from these debates. Here we argue that the analysis supporting these claims is misleading because it fails to look at the right drugs at the right points in time, overlooks the temporal dimensions of implementation of provisions in previous trade agreements, and ignores the broader context in which trade agreements are negotiated and implemented. Much more empirical work is needed to understand the impact of previous trade agreements, and the effects of stronger patent protections in developing countries on innovation, access, and prices. Some of the crucial analyses may not be possible until the provisions in the agreements take full effect, which could take some time especially in developing countries where patenting is relatively new.

High drug prices are creating serious health and fiscal problems in the United States today. This reality is vividly illustrated by recently approved medicines to treat Hepatitis C. These new medicines can cure nearly everyone with this potentially fatal infection and may even enable the elimination of this disease. But the drugs' sticker price -- close to $100,000 -- has meant that very few patients who could benefit from them can access them. This Article describes an approach, available under existing law, to bring about transformative reductions in the prices of these medicines, at least for federal programs and possibly beyond. Under 28 U.S.C. § 1498, the U.S. government can buy generic versions of these medicines at less than 1% of their list price plus a reasonable royalty. This power has received almost no academic attention, despite the fact that it is regularly used by the government in other sectors, including defense. Indeed, though it has now been forgotten, the federal government relied on this provision numerous times to procure cheaper generic drugs in the 1960s. We recover this history and show how § 1498 can once again be used to increase access to life-saving medicines, addressing several important interpretive questions about the application of the provision along the way. We also offer the first sustained efficiency defense of this approach. This power, we show, can be analogized to the eminent domain power over land and similarly justified as a means to address hold out problems. We show that courts or agencies can fashion damages remedies that provide robust returns to investment, and so protect dynamic incentives while permitting radical improvements in static efficiency. Our remedy involves some risk, as do all policy innovations. But the status quo is so deeply dysfunctional -- with millions of Americans unable to benefit from medicines that could halt the spread of a major disease -- that the case for action is overwhelming.