Supervisors in a World of Flat Hierarchies

Catherine Fisk

Volume 64, Issue 5, 1403-1420

Under the National Labor Relations Act (“NLRA”), employees who are supervisors do not have the rights to join or assist labor unions or engage in other concerted activities for mutual aid and protection. The federal courts and the National Labor Relations Board (“NLRB”) have longstanding disagreements between and among them over how much authority over what types of working conditions is necessary to render one a supervisor. Recent cases reach conflicting results over issues such as whether nurses who can report co-workers for disciplinary infractions or can direct other employees to perform certain tasks are statutory supervisors who exercise independent judgment. The Supreme Court has twice rejected the NLRB’s efforts to clarify the law by narrowing the breadth of vague statutory terms defining supervisors. Because the statutory language invites the meaning of supervisor to be fact dependent and tethered closely to the policy bases for protecting employees’ rights to unionize and for excluding supervisors from the protection of those rights, deference to the Board’s judgment in line drawing is important. As the Supreme Court prepares to resolve a circuit split over the definition of supervisor under Title VII, it is particularly important to remember that, although the NLRB and the Equal Employment Opportunity Commission (“EEOC”) have adopted similar tests under the two different statutes, the policies underlying the legal definition of supervisor are dramatically different and call for a broad definition of supervisor for Title VII and a narrow definition of supervisor under the NLRA.

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Winning the War on Drug Prices: Analyzing Reverse Payment Settlements Through the Lens of Trinko

Alicia I. Hogges-Thomas

Volume 64, Issue 5, 1421-1447

As drug prices continue to rise, many Americans are forced to choose between buying food or medicine. In 1984, Congress sought to address this issue by enacting the Hatch- Waxman Act. The purpose of the Act was to increase the availability of generic drugs by enabling the generic companies to challenge the brand companies’ patents in litigation. But this purpose is frustrated when the brand companies pay the generic companies millions of dollars to settle the litigation and delay their market entry. These settlements, which are usually referred to as “pay-for-delay” or “reverse payment” settlements, benefit the pharmaceutical companies at the expense of consumers.Reverse payment settlements have been challenged under the antitrust laws. In the last decade, the circuit courts have developed three approaches to analyzing reverse payment settlements. None of the courts considered whether the patent was valid or infringed. Furthermore, because courts favor settlement, the prevailing analysis has resulted in absolutely no antitrust scrutiny of reverse payment settlements.Most recently, the Supreme Court granted a petition for certiorari in FTC v. Watson Pharmaceuticals, Inc. This Article argues that the Court’s decision should be guided by the principles in Verizon Communications v. Law Offices of Curtis V. Trinko. Those principles will lead the Court to consider the particular circumstances of the pharmaceutical industry and how the Hatch-Waxman Act affects competition in that industry. After considering these factors, the Court should conclude that the policy favoring settlement should not be considered in this antitrust analysis and that the courts should decide the merits of the underlying patent claim.

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The Computer Fraud and Abuse Act and Disloyal Employees: How Far Should the Statute Go to Protect Employers from Trade Secret Theft?

Audra A. Dial and John M. Moye

Volume 64, Issue 5, 1447-1467

This Article discusses the current split between the federal circuits over the scope of the Computer Fraud and Abuse Act (“CFAA”) and whether it extends to employees who steal an employer’s electronic trade secrets to which they were lawfully given access as employees. After discussing the legislative history of the CFAA and various appellate decisions interpreting its scope, the Authors argue that recent court decisions interpreting the statute—exemplified by the Fourth Circuit in WEC Carolina Energy Solutions, LLC v. Miller and the Ninth Circuit in United States v. Nosal—are unduly narrow in their scope.The Authors argue that the CFAA, by its language, is broad enough to provide for civil liability when a disloyal employee misappropriates electronic trade secrets in violation of an employer’s computer use policies. A contrary approach is harmful to employers and inconsistent with the statute’s intent. In light of these ambiguities, clarification of the CFAA’s scope—either from the Supreme Court or via legislative action—is sorely needed.

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Do Graphic Tobacco Warnings Violate the First Amendment?

Nathan Cortez

Volume 64, Issue 5, 1467-1500

When Congress passed the nation’s first comprehensive tobacco bill in 2009, it replaced the familiar Surgeon General’s warnings, last updated in 1984, with nine blunter warnings. The law also directed the U.S. Food and Drug Administration (“FDA”) to require color graphics to accompany the textual warnings. By law, the warnings would cover the top fifty percent of the front and back of tobacco packaging and the top twenty percent of print advertisements, bringing the United States closer to many peer countries that now require graphic warnings. Tobacco companies challenged the requirement on First Amendment grounds, arguing that the compelled disclosures violated their free speech rights. In 2012, the Sixth Circuit Court of Appeals treated the challenge as a facial attack and upheld the law in Discount Tobacco City & Lottery v. United States; five months later, the D.C. Circuit vacated the graphic warnings selected in the FDA’s final rule in R.J. Reynolds v. FDA. Although many expected the Supreme Court to resolve the apparent circuit split, the government withdrew the rule and opposed Supreme Court review. As such, the FDA will reinitiate the lumbering rulemaking process and propose new graphic warnings. And when it does, the tobacco industry most likely will challenge the graphic warnings again on First Amendment grounds. This Article considers several ambiguities that these cases have left unresolved and suggests how the FDA and courts should confront these questions during the next round of rulemaking and litigation. The Supreme Court will probably have another chance to resolve these ambiguities and its decision could have significant consequences for future government efforts to catch our attention at the point of sale.

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Lost in the Fog of Miranda

George C. Thomas III

Volume 64, Issue 5, 1501-1520

For over two centuries, Anglo-American law used a test of “voluntariness” to determine the admissibility of confessions. The twentieth century saw increasing skepticism that law can determine which conscious utterances are “voluntary” and which are not. Suspects who speak to police do so because they choose to speak rather than the alternative. If the alternative is torture, that feels involuntary. But if it is merely a lengthy interrogation, who can “prove” that the choice to answer is involuntary? Miranda v. Arizona was, in part, the Court’s response to this skepticism. If judges cannot tell which utterances are voluntary, why not give control of the interrogation over to the suspect? By telling the suspect that he has a right to silence and a right to consult with counsel, police provide the suspect with choices beyond answering or not answering questions. Thus, any subsequent choice to talk to police is likely voluntary. But Miranda’s apparently elegant “free choice” principle has metastasized into a dizzying array of formalistic doctrines and subdoctrines. This Essay documents the lower court confusion over one of the subdoctrines— the exception for so-called “booking questions.”

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Note – The Case for Uniform Hot News Preemption

Joshua Korr

Volume 64, Issue 5, 1521-1549

Hot news misappropriation is a ninety-year-old tort that provides a quasi-property right in factual information to fact-gathering organizations. When available, the right prevents free riders from copying factual information while it remains hot. The question is whether section 301 of the Copyright Act preempts hot news misappropriation claims in all circumstances. Although courts have had little trouble finding that most misappropriation claims are preempted, the issue is complicated in the hot news context by legislative history suggesting that hot news claims survive preemption. That suggestion conflicts with the actual language of the Copyright Act’s preemption provision, which seems to require the universal preemption of hot news claims.

In the 1990s, hot news cases were rare enough that one might have reasonably concluded that the tort had died out. Nonetheless, courts left open the suggestion that a hypothetical hot news claim might survive preemption. There the issue might have remained, but revolutionary technological expansion has made copying, the actus reus of hot news misappropriation, exponentially more harmful to traditional fact gathering organizations. In recent years, the hot news tort rose from its dormancy through aggressive litigation by institutions like the Associated Press and Barclays Capital Inc. Because these lawsuits are anti-competitive and threaten the public domain, it is time to put the specter of hot news to rest. Fortunately, faithful application of section 301 of the Copyright Act compels that exact result. This Note presents the case for uniform hot news preemption.

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Note – Fair Use as Free Speech Fundamental: How Copyright Law Creates a Conflict Between International Intellectual Property and Human Rights Treaties

Jacob Zweig

Volume 64, Issue 5, 1550-1585

Copyright law grants individuals monopoly over a particular kernel of expression, whereas the right to freedom of expression theoretically grants others the right to use that same kernel of expression. In this sense, the right to freedom of expression conflicts with copyright law. This Note argues that a flexible, open-norm copyright exception like the U.S. fair use doctrine provides a free speech safety valve that is essential in resolving the conflict and is thus a necessary component of the right to freedom of expression protected by treaties such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Therefore, countries that lack such a flexible copyright exception may be in violation of those treaties. This is significant because broad, flexible copyright exceptions are rare outside the United States.

On the other hand, as indicated by an analysis of a recent World Trade Organization panel adjudication regarding section 110(5) of the U.S. Copyright Act, flexible, fair use-like copyright exceptions may violate the Agreement on Trade-Related Aspects of Intellectual Property. This Note argues that the requirements of these human rights and intellectual property treaties may be in conflict with regard to the copyright exception member nations must enact to comply with each. However, recent developments indicate momentum toward international acceptance of flexible, fair use-like copyright exceptions. Thus, this conflict between the treaties should be resolved in favor of freedom of expression and flexible copyright exceptions.

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