Emory Law Journal

Volume 62Issue 4
The 2012 Randolph W. Thrower Symposium, Innovation for the Modern Era: Law, Policy, and Legal Practice in a Changing World
Thrower Symposium Articles

Theorizing Forms for Social Enterprise

Dana Brakman Reiser | 62 Emory L.J. 681 (2013)

Jurisdictions across the country and around the globe are enacting legislation enabling founders of social enterprises to adopt specialized forms to house their entities. These forms blend elements traditionally found in nonprofit organizational forms, such as commitment to a social mission, with elements from for-profit business structures, such as the ability to attract investors.

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Making Knowledge and Making Drugs? Experimenting with University Innovation Capacity

Liza Vertinsky | 62 Emory L.J. 741 (2013)

The innovation process for novel medical therapies needs repair. The United States spends more than ever before on drug discovery without a corresponding increase in new medical therapies.

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Facilitating Better Law Teaching—Now

Martin J. Katz | 62 Emory L.J. 823 (2013)

This Essay is about solutions—real solutions that law schools can deploy right now to improve the education we provide. And it is about how to overcome obstacles to implementing those solutions right now. This is how change happens.

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Sustainable Business

Robert A. Katz, Antony Page | 62 Emory L.J. 851 (2013)

In recent years lawyers have become increasingly active in the field of social enterprise and social entrepreneurship, wherein organizations and people seek novel, revenue-generating solutions to social problems. This is nowhere more evident than in the development of new legal structures for for-profit social enterprises.

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The Trouble With Lawyer Regulation

James E. Moliterno | 62 Emory L.J. 885 (2013)

The American legal profession has been a backward-looking, change-resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers’ efforts to change their own practices and entrepreneurs’ efforts to enter the legal marketplace to serve the needs of middle- and lower-income clients. When change does come, the legal profession is a late-arriver, usually doing no better than catching up to changes around it that have already become well ensconced. This failure robs society of what could be a positive role of the legal profession in times of change, and it deprives the profession itself of being as robust and successful as it could be.

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Quantitative Legal Prediction–or–How I Learned to Stop Worrying and Start Preparing for the Data-Driven Future of the Legal Services Industry

Daniel Martin Katz | 62 Emory L.J. 823 (2013)

Welcome to law’s information revolution—revolution already in progress.

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Anything Under the Sun Made by Humans: Patent Law Doctrines As Endogenous Institutions for Commercializing Innovation

James E. Daily, F. Scott Kieff | 62 Emory L.J. 967 (2013)

This Essay outlines a comparative institutional analysis among various doctrines in patent law to show how they can have different impacts on the way inventions are commercialized. It builds on a prior body of work about the positive role that property rights in patents can play in commercializing innovation to show how recent shifts in approaches to the particular legal doctrine known as patentable subject matter can be expected to have different effects on the commercialization of inventions than prior approaches. It concludes that, to the extent society wants to increase the overall rate of invention commercialization and increase overall competition as reflected in diversity in firm size among participants in the markets for commercializing innovation, society should consider reversing course on the law of patentable subject matter and return to an approach that is closer to the“anything under the sun made by man” view that was championed by the Supreme Court in the 1980s and by Congress through most of the second half of the twentieth century, updating only its gender biased language.

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Increasing Innovation Through Copyright Common Sense and Better Government Policy

Michael A. Carrier | 62 Emory L.J. 983 (2013)

Innovation is crucial to the U.S. economy. But many of our laws and policies are not promoting innovation. This Essay addresses this problem. The first set of proposals focuses on copyright law. The recommendations avoid vague copyright law and suggest the elimination of statutory damages and personal liability in cases of secondary infringement. The second set of proposals highlights government policies that can be adjusted to achieve a more enlightened immigration policy, adequate funding for basic research, an increased focus on science and math education, and an extension of the research-and-development (R&D) tax credit.

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The Benefit Corporation: An Economic Analysis with Recommendations to Courts, Boards, and Legislatures

Kyle Westaway, Dirk Sampselle | 62 Emory L.J. 999 (2013)

The benefit corporation legislation can be seen as a system of new formal rules, which at once seeks to complement and increase the effectiveness of the “corporate social responsibility” and “sustainable business” trends, and also disrupt the longstanding, informal constraint of shareholder wealth maximization. This legislation is designed to reduce transaction costs for both consumers and investors who subscribe to the “ethical consumer” and “impact investing” trends, respectively.

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Government Choices in Innovation Funding (With Reference to Climate Change)

Joshua D. Sarnoff | 62 Emory L.J. 1087 (2013)

Huge amounts of money will soon be spent by governments and private entities to develop technology to reduce the costs of climate change mitigation and adaptation, and to deploy new energy and transportation infrastructures. Incredibly, we still lack any good idea of the best means of providing massive amounts of government or private money so as to promote the most innovation and technology diffusion at the lowest cost. This Article seeks to support better analyses of, and decision making regarding, the choices of government innovation-funding mechanisms by discussing the limits of current analyses and providing a taxonomy of such measures. It also proposes future work to better analyze what we know about these choices and their relative effectiveness, and it discusses new measures to expand our knowledge base, which include: (1) better tracking of government innovation-funding inputs and outputs; (2) better documentation of and self-conscious decision making regarding funding choices; and (3) creating experiments that go beyond existing natural experiments.

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Whose Defense is it Anyway? Redefining the Role of the Legislative Branch in the Defense of Federal Statutes

Simon P. Hansen | 62 Emory L.J. 1159 (2013)

When the Obama Administration announced it would cease defending the Defense of Marriage Act (DOMA) in litigation, it demonstrated the increasing fluidity inherent in the Executive Branch custom of defending federal statutes. After three years of setting aside its opposition to DOMA, the Administration adopted a newfound interpretation of DOMA’s Section Three and abruptly abandoned its defense. While the House Bipartisan Leadership Advisory Group eventually undertook the law’s defense, it met obstacles in finding a litigant on its behalf. Partisan opposition to the Advisory Group’s decision to defend DOMA and a prominent U.S. law firm withdrawing its representation jeopardized the law’s defense.

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Drawing on Daubert: Bringing Reliability to the Forefront in the Admissibility of Eyewitness Identification Testimony

Suedabeh Walker | 62 Emory L.J. 1205 (2013)

Eyewitness identification evidence has long been recognized for its tendency toward unreliability and its susceptibility to suggestion. At the core of eyewitness identification is the ability to recognize unfamiliar faces—a memory process that can be distorted by factors intrinsic to the nature of memory, as well as by extrinsic suggestive identification procedures, such as lineups. Because the guilt or innocence of a criminal defendant is often at stake in cases where eyewitness identification is at issue, this potential for distortion is particularly worrisome. In fact, this concern is borne out in statistical data about wrongful convictions in the United States, showing that mistaken identifications are the leading cause of wrongful convictions in the country.

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