University of Pittsburgh Law Review

Masthead

Editor Law Review — Thu, 05 Dec 2024 00:00:00 -0500

Administration and Faculty

Editor Law Review — Thu, 05 Dec 2024 00:00:00 -0500

Protecting Nurses with Workplace Violence Prevention Legislation in Pennsylvania

Bailey McKinney Varrati — Thu, 05 Dec 2024 00:00:00 -0500

Raising the Bar

Joseph T. Fabiano — Thu, 05 Dec 2024 00:00:00 -0500

Culturally Proficient Lawyering: A Framework and Rubric Supporting Learning Outcomes and Objectives

Anastasia M. Boles, Demetria D. Frank, Darrell D. Jackson, Jamila Jefferson — Thu, 05 Dec 2024 00:00:00 -0500

Culturally Proficient Lawyering is an important guide for legal educators who are employing cultural proficiency course objectives in accordance with new American Bar Association (“ABA”) accreditation Standard 303(c). The recently adopted Standard 303(c) requires that law schools educate students about “bias, cross-cultural competency, and racism.” This Article is among the first to propose a comprehensive curricular framework that supports Standard 303(c) outcomes and objectives. It includes an important resource for law professors with a sample exercise and a rubric tool that will aid in assessing students’ culturally proficient lawyering awareness, knowledge, and skills.

The Privacy Act of 1974: The American Bill of Rights on Data and Its Unfinished Business

Dongsheng Zang — Thu, 05 Dec 2024 00:00:00 -0500

In the midst of the artificial intelligence (“AI”) revolution and the debates around it in 2023, this Article proposes to revisit the history of the Privacy Act of 1974, a federal statute that attempted to revolutionize the notion of privacy in response to automated data processing in the computer age. By recognizing that an individual should have the right to control data about herself, the 1974 Act went beyond the Warren-Brandeis framework of privacy based on tort law—the 1974 Act was essentially an American Bill of Rights on data.

The Article first tracks the conceptual development of this new idea of privacy by looking into congressional hearings and broad literature in the 1960s and early 1970s when the computer was introduced in federal government agencies. It describes the process from a theory of scholars and activists such as Alan Westin, to a consensus and policy position largely formed around the year 1971. Based on this central thesis, a “code of fair information practice” laid out five fundamental principles (openness, individual access, collection limitation, use and disclosure limitation, and information management) as the foundation for the 1974 Act. The Article then tracks privacy litigation subsequent to the 1974 Act. Here the Article demonstrates that in the decades after its enactment, the Act was substantially undercut in federal courts as the latter insisted on the old-fashioned tort law theory in interpreting the Act. Today, the Privacy Act of 1974 largely falls to oblivion—it is barely mentioned in the current debates on AI regulation.

The Article argues that the 1974 Act is an unfinished business not only because of its unfulfilled promises. While struggling at home, the ideas behind the 1974 Act were more successful abroad. This Article shows that the American congressional hearings and ideas behind the 1974 Act stimulated and facilitated first-generation data protection laws across the Atlantic during the 1970s. That central thesis has gained constitutional status in courts in Germany, India, South Korea and Taiwan, through the doctrine of informational self-determination. In the wake of the AI revolution, what we need is to learn from and strengthen the 1974 Act. What we need today is to finish what was left in 1974, and to develop a real American Bill of Rights on data.

The Unintended Costs of Advance Waivers of Future Conflicts

Ashley M. London — Thu, 05 Dec 2024 00:00:00 -0500

The American Bar Association (“ABA”) unenthusiastically recognized advance waivers of future conflicts for the first time in a 1993 formal opinion. These allow lawyers to take on prospective clients whose interests will be adverse to current clients at some point in the future. They also sidestep the ethics rule requirement of obtaining true informed consent from a client to waive a conflict of interest because, at the time of signing, the conflict is not yet ripe.

After a full-court press by its own Business Law Section Ad Hoc Committee during the Ethics 2000 Commission’s review of the Model Rules of Professional Conduct, the ABA repealed its limited approval in favor of a broader acceptance of advance waivers in 2005. After all, advance waivers mean lawyers and law firms can grow profits by not having to turn down clients with conflicting interests.

The intended consequences of such waivers are to allow larger law firms to keep as much business as possible, while also permitting large and sophisticated clients an unfettered choice of legal representation. They also come with some unintended consequences: keeping large clients condensed in a small number of large firms, thereby creating industry oligopolies where diversity among partners is staggeringly low; increasing the opportunity to exercise confirmation bias in Big Law; and placing the burden on courts to police these agreements in what has proven to be a disorderly fashion.

This Article asserts that advance waivers of conflicts should be carefully scrutinized and perhaps disallowed because they exist primarily to permit Mega Big Law firms to monopolize business and crowd out competition. The use of advance waivers by industry lawyers may also have a dampening effect on diversity efforts by increasing confirmation bias, and can prevent smaller and mid-sized law firms from establishing additional areas of expertise. Inconsistent opinions by courts across the country and the lack of guidance from ethics policymakers make crafting reliable rules about drafting enforceable advance waivers nearly impossible. Instead, Mega Big Law firms could simply seek informed consent from sophisticated clients at the time a potential conflict arises, but not before.

Delaying informed consent to the point at which there is a conflict could satisfy increasingly chaotic courts, as well as allow policymakers to show the rules of professional conduct apply to all law firms regardless of size or wealth.

The Long CON: An Empirical Analysis of Pharmaceutical Patent Thickets

S. Sean Tu — Thu, 05 Dec 2024 00:00:00 -0500

Over the past two decades, drug manufacturers have tripled the intensity of patenting around their drugs with 1.86 patents per active ingredient in 2001 to almost six patents per active ingredient in 2019. This three-fold increase in patenting has led to a dense web of overlapping intellectual property rights called “patent thickets.” These thickets can include dozens and sometimes hundreds of less innovative “secondary” patents. Many of these secondary patents use a special “continuation” application (“CON”), which allows brand manufacturers to spawn additional patents from a previous patent family member without disclosing anything new. CONs allow brand manufacturers to quickly create less innovative nuisance patents that are designed to delay or deter generic market entry. This Article focuses on the use of CONs in the creation and enforcement of pharmaceutical patent thickets.

This study analyzes data on all continuation applications from 2000 to 2022 (over 7.5 million patent applications) and links these applications to subsequent patent litigation from 2000 to 2022. This study also focuses on continuation applications filed more than five years after the original application’s priority date (“Long CONs”). When we compare pharmaceutical patents against all other technology groups, we show that Long CONs are usually part of large patent thickets and are strategically important components of brand firm litigation. We find that the use of Long CONs has steadily increased over the last three decades for some technology types, but this increase is more pronounced for pharmaceutical patents.

Long CON patents represent only 8.3% (639,308/7,692,046) of all patent applications; however, Long CONs represent 23% (9,836/43,220) of all litigated patents. Additionally, 51% (323,908/639,308) of all Long CONs come from just a few industries. The pharmaceutical industry disproportionately files and litigates Long CONs patents. We find that Long CONs represent 33% (2,126/6,432) of all small molecule pharmaceutical patents and 36% (900/2,534) of all litigated small molecule pharmaceutical patents. This data shows that patent thickets built upon continuation applications have a disproportionate effect on litigation, which may result in higher drug prices for longer periods of time.