Preemptive Power Research Articles

Smoke signal: When firms' patent strategy and local patent protection system affect equity stakes in cross-border acquisitions

A distinctive feature of many international acquisitions of firms with technology resources is the extreme uncertainty about the value of the target's resources. Such uncertainty increases the complexity of ownership decisions in target firms. Drawing from signaling theory, we articulate how international acquirers perceive the pre-emptive power of target firms' patent portfolio as a positive signal, increasing their confidence in target firms' technology and leading them to seek a higher level of equity. We further argue that the strength of the target firm's home country's patent system also acts as a positive signal that encourages investors to acquire a higher level of equity in cross-border acquisitions. However, it also weakens then impact of the pre-emptive power signal. Our findings have implications for scholars, policymakers, and managers.

Cooley v. Board of Wardens and its Nineteenth‐Century Legacy

<i>Cooley v. Board of Wardens</i> and its Nineteenth‐Century Legacy

Invisible Powers to Punish: Licensee-barring Order Provisions in Victoria and South Australia

Problems associated with excessive alcohol consumption have prompted a range of legislative, regulatory and operational responses. One provision empowers licensees, in Australian jurisdictions such as Victoria and South Australia, to formally exclude patrons from their venues and the surrounding public area. The imposition of a licensee-barring order requires no demonstrable offence to be committed. No proof needs to be documented and the ban takes effect immediately. Non-compliance is subject to police enforcement and possible criminal breach proceedings. The process through which a barring order may be challenged can be ambiguous and time consuming, and the punishment is typically served regardless of the review outcome. However, limited data are available to enable assessment of the way in which barring orders are used. As such, this paper examines how licensee-barring orders extend to non-judicial and non-law enforcement officers an on-the-spot and pre-emptive power to punish. Yet, with no formal training, monitoring or meaningful oversight of their use, barring orders are open to abuse and constitute a summary power to punish that is opaque to scrutiny.

The Preemptive Scope of the National Bank Act's Employment 'At Pleasure' Provision from Westervelt to Wiskotoni to Wiersum: Deconstructing the Conflict between Plain Meaning and Plain English

This paper analyzes the preemptive power and scope of the National Bank Act of 1864 (NBA) with regard to federal and state labor law by deconstructing the key cases that have considered the issue, yet have come to differing conclusions. Although findings range from complete preemption to non-preemption of state law, all courts generally agree that the NBA’s “at pleasure” language preempts any contractual claims under employment “at will.” In fact, this analysis asserts that the “at pleasure” language of the NBA means exactly that—“at will”—and nothing more. This analysis also suggests that the “complete preemption” doctrine arose from the anachronistic case of Westerveld (8th Cir. 1896) and its “complete contractual preemption” progeny, in which preemption was properly applied to contractual claims. However, it is argued that the complete contractual preemption doctrine was then erroneously extended to cases involving non-contractual claims via the dictum found in cases such as Wiskotoni (6th Cir. 1983), as most recently argued in Wiersum (11th Cir. 2015). Westerveld and Wiskotoni thus gave rise to a complete preemption fallacy by failing to distinguish between “wrongful” discharge claims based in contract, and “discriminatory” and/or “retaliatory” discharge claims based in tort. With the rise of civil rights laws, to include Title VII and the Dodd-Frank whistleblower statute, the distinction between contractual employment rights under employment at will and the non-contractual employment rights which exist independently of the employment contract—such as the right to be free from discrimination or retaliation—has taken on greater legal significance. Because this distinction has remained unaddressed by the U.S. Supreme Court, the Westerveld-Wiskotoni-Wiersum complete preemption fallacy lives on, sustained by the Lochnerism of the complete preemption courts. This analysis shows that, in order to find complete preemption, one must engage in “two questionable interpretive moves,” as noted in Goonan (S.D.N.Y. 2013): one must first read the NBA at a very high degree of generality in order to find an unlimited “power” of preemption. Then, one must find that the Congress of 1864 had intended that this broad power serve to preempt state employment laws that were then unimagined. As the Goonan court concluded, the argument supporting complete preemption thus requires that a “mountain” of Congressional intent assumptions rest upon a “slender reed” of high generality. Additionally, the complete preemption courts themselves have strayed from their own doctrine by exempting severance payments (“golden parachutes”) from even complete contractual preemption. This exemption of contractual terms arguably reflects the practice of preemption alchemy, inasmuch as this contractual exemption is not extended to non-contractual claims such as retaliatory discharge and discrimination, which the NBA should not preempt, absent express preemption language. In summary, this analysis argues for the non-preemption doctrine, the partial preemption doctrine, and the “retail” preemption doctrine—any of which represent the more sound application of English to the analysis of the NBA’s preemptive power and scope. These three limited preemption doctrines allow claims based on state law to proceed (1) without preemptive effect where state laws advance the purposes of similar federal laws, and (2) with limited preemptive effect where state laws (A) substantially mirror federal laws, (B) are not so dissimilar to federal laws as to warrant preemption, and (C) where state public policy supports the purpose of federal law.

The Strategic Allocation of Inventors to R&amp;D Collaborations

Safeguarding against unintended leakage of valuable knowledge in R&D collaboration requires careful attention to the role of inventors participating in these collaborations. In this paper, we claim that the degree of protection of the knowledge embodied by inventors affects how an opportunistic partner can use this information when technology leakage occurs. The implication is that those inventors whose set of knowledge is more protected are more likely to be assigned to joint activities than their co-workers. By relying on patent ownership and authorship data, we analyze the allocation of inventors to collaborative projects from a sample of large pharmaceutical firms. Our results confirm that inventors are strategically allocated to projects according to their degree of preemptive power.

The Vagrancy Act (1824) and the Persistence of Pre-emptive Policing in England since 1750

This article argues that research into preventive and pre-emptive crime control in the United Kingdom has marginalized the historical persistence of the power to arrest and convict on justified suspicion of intent. It traces the genesis of this power in statute law (particularly the Vagrancy Act of 1824) and demonstrates its consistent use in the nineteenth and twentieth centuries. It shows how this pre-emptive power was fiercely defended by police authorities, particularly during the rise of the ‘civil liberties’ agenda during the 1930s, only losing ground when use of these powers became entangled with debates about race relations in the 1970s. Overall, the article argues that ‘pre-emptive’ arrest and conviction on suspicion of intent have been a significant component of UK police powers since the later eighteenth century, and seeks to demonstrate the value of historical criminology in problematizing contemporary debates.

The Strategic Allocation of Inventors to R&amp;D Collaborations

Safeguarding against unintended leakage of valuable knowledge in R&D collaboration requires careful attention to the role of inventors participating in these collaborations. In this paper, we claim that the degree of protection of the knowledge embodied by inventors affects how an opportunistic partner can use this information when technology leakage occurs. The implication is that those inventors whose set of knowledge is more protected are more likely to be assigned to joint activities than their co-workers. By relying on ownership and authorship data of patents, we analyse the allocation of inventors to collaborative projects from a sample of large pharmaceutical firms. Our results confirm that inventors are strategically allocated into projects according to their degree of preemptive power.

A preemptive power to offensive patent litigation strategy: Value creation, transaction costs and organizational slack

Offensive patent litigation is an increasingly important part of the firm's corporate strategy to protect the values of its intellectual property rights. Building on the value creation and transaction costs perspectives, this study explores how the preemptive power is most important to a firm's offensive patent litigation strategy through two key mechanisms. By applying an experimental design method to develop scenarios for top executives of publicly-traded companies and small- and medium-sized enterprises, the results show that both the patents' value creation based on their transaction costs and market positions influence the propensity of preemptive power separately through perceived benefits and organizational slack, and accordingly affect the offensive patent litigation strategy. These findings not only broaden the resource-based, transaction cost and value creation explanations of offensive patent litigation decisions, but also facilitate the formulation of the codes of conduct for the managerial capability in the contexts of offensive patent litigation.

Resource complementarity and value capture in firm acquisitions: The role of intellectual property rights

Extant literature holds that firm acquisitions create value through innovation if the knowledge bases of the acquirer and the target complement each other. Little is known about the value that patents associated with a target's knowledge convey to the acquirer, i.e., their value in securing market exclusion and freedom to operate in R&D. We argue that such property rights hold preemptive power allowing firms to capture the value from combining complementary technologies and to realize gains from trade in strategic factor markets. Our results for a sample of 1,428 acquisitions indicate that—controlling for technological value—acquired preemptive power is an important determinant of the acquisition price, particularly when the acquirer is technology intensive and acquired patents are highly related to the acquirer's knowledge base. Copyright © 2013 John Wiley & Sons, Ltd.

Pre-emptive patenting: securing market exclusion and freedom of operation

We investigate statistically the characteristics, functioning and incidence of pre-emptive patenting, defined as patent filings whose main effect is to hamper the grant of other patents. Patent applications can be used defensively to prevent the grant of exclusive rights over markets and technologies, in order to ensure freedom of operation or keep competitors out of a given technological field. Combining data from examination outcomes and prior art at the European Patent Office, we develop a methodology to identify pre-emptive patent applications. We find evidence of pre-emption associated with patent applications cited as compromising patentability while not being deemed relevant to the state of the art. We also find that, among them, those which are withdrawn have the strongest pre-emptive power. The coincidence of low inventiveness and high pre-emptive impact supports the idea that some of these patents may be strategically designed by their applicants to block patenting by others.

A Reconfigurable Power Conscious Core Wrapper and its Application to System-on-Chip Test Scheduling

The increasing test application times required for testing system-on-chips (SOCs) is a problem that leads to higher costs. For modular core based SOCs it is possibly to employ a concurrent test scheme in order to lower the test application times. To allow each core to be tested as a separate unit, a wrapper is inserted for each core, the scan chains at each core are configured into a fixed number of wrapper chains, and the wrapper chains are connected to the test access mechanism. A problem with concurrent testing is that it leads to higher power consumption as several cores are active at a time. Power consumption above the specified limit of a core or above the limit of the system will cause damage and must be avoided. The power consumption must be controlled both at core level as well as on system level. In this paper, we propose a reconfigurable power conscious core wrapper that we include in a preemptive power constrained test scheduling algorithm. The advantages with the wrapper are that the number of wrapper chains at each core can dynamically be changed during test application and the possibility, through clock gating, to select the appropriate test power consumption for each core. The scheduling technique produces optimal solutions in respect to test time and selects wrapper configurations in a systematic manner while ensuring the power limits at core level and system level are not violated. The wrapper configurations are selected such that the number of wrapper configurations as well as the number of wrapper chains at each wrapper are minimized, which minimizes the wrapper logic as well as the total TAM routing. We have implemented the technique and the experimental results show the efficiency of our approach.

The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation

We offer a theory about public policy adoption that depicts a game between state supreme courts and state policymakers. We hypothesize that court ideological hostility or friendliness operates to discourage or encourage policy enactment, with the likelihood of subsequent court intervention magnifying the relationship. To test the argument we examine the influence of court ideology on the enactment of state abortion and death penalty laws since the 1970s. Empirical analyses provide strong support for our theory, indicating that court ideological hostility or friendliness significantly influenced state abortion and death penalty policy enactments. In addition, the likelihood of court intervention conditioned this relationship, with the most pronounced effect occurring where subsequent court review was mandatory. The findings reveal courts exert important preemptive influence on law without hearing a case. This facet of judicial influence expands the traditional view of actors involved in the policymaking process.

ERISA: Supreme Court Holds ERISA Does Not Preempt Illinois Independent Review Law—Rush Prudential HMO, Inc. v. Moran

ERISA: Supreme Court Holds ERISA Does Not Preempt Illinois Independent Review Law-Rush Prudential HMO, Inc. v. Moran1-The U.S. Supreme Court, a 5-4 decision, held that the Employee Retirement Income and Security Act (ERISA)2 does not preempt the Illinois Health Maintenance Organization Act (Illinois Act).3 In response to widespread employer mismanagement of employee pension funds, Congress enacted ERISA to create a uniform system of federal law to regulate private sector employee benefits programs, including employment-based health coverage.4 By alleviating the administrative burden of complying with an amalgam of state laws, Congress intended to encourage and enable more employers to provide benefits for their employees and to increase access to these benefits.5 To effectuate these goals of uniform regulation, Congress expressly dictated that ERISA preempts all state laws that relate to ERISA plans.6 ERISA's unbridled preemption raised federalism concerns about the respective roles of the state and federal government. Traditionally, states have regulated insurance; to preserve some role for state authority, ERISA provides a narrow exception to its preemptive power over state laws. Under this savings clause, state laws that regulate the business of insurance are saved from ERISA preemption even if such state laws relate to ERISA plans. ERISA was enacted 1974, before the advent of health maintenance organizations (HMOs). As many commentators have noted, the emergence of HMOs as the primary providers of healthcare and health insurance the U.S. has muddled the question of ERISA preemption. The ERISA preemption quandary results from the fact that many HMOs perform multiple functions, including management and provision of healthcare, and administration of ERISA plans. Moran is the most recent Supreme Court case to address where ERISA regulation ends and state regulation begins under ERISA preemption. Writing for the majority, Justice Souter aptly surmised the general issue that has plagued ERISA jurisprudence, namely the interpretation of the difficult language of ERISA that seems simultaneously to preempt everything and hardly anything.7 In Moran, the Court addressed another issue stemming from this underlying quandary, which is whether the Illinois Act was a permissible state regulation of insurance or whether the Act was preempted by ERISA. Section 4-10 of the Illinois Act requires HMOs to submit benefit denials to an independent physician reviewer in the event of a dispute between the primary care physician and the [HMO] regarding the medical necessity of a covered service proposed by a primary care physician.8 Under the Act, an independent physician reviewer must be unaffiliated with the HMO and jointly selected by the HMO and the patient. If the independent reviewer decides that the treatment is medically necessary and is a covered service under the contract, the HMO must provide the covered service. Respondent Debra Moran was a beneficiary of petitioner Rush Prudential's health plan, which was sponsored by her husband's employer. Under its Certificate of Group coverage issued to plan beneficiaries, Rush promised to provide its participants with medically necessary health services. Under Rush's plan, each participant selected a primary care physician from a group of physicians who had a contract with Rush. According to its contract, Rush was obliged to pay for medical services performed by an unaffiliated physician only if the services had been authorized by both the primary care physician and Rush's medical director.9 Moran suffered pain and numbness her right shoulder. Her primary care physician's attempts to alleviate her discomfort through conservative treatments were unsuccessful. Moran's primary care physician recommended that Rush approve surgery by an unaffiliated specialist who had developed an unconventional treatment for Moran's condition. Despite her physician's recommendations, Rush denied Moran's request for coverage of the surgery because it found that the procedure was not medically necessary. …

Categorical Federalism: Jurisdiction, Gender, and the Globe

This essay analyzes the idea, put forth in the new federalism jurisprudence of the United States Supreme Court, that "the Constitution requires a distinction between what is truly national and what is truly local." This mode of analysis has generated a posture I term categorical federalism; the Court assumes that a particular law can be categorized by identifying its aims as governing certain aspects of human behavior. The litigation about the Violence Against Women Act provides a first example. In United States v. Morrison, the majority claimed that what Congress had termed a "civil rights remedy," enacted through its Equal Protection and Commerce Clause powers, was instead related to families and crime because violence against women was not "economic in nature." The majority then proceeded to identify families as a subject matter for state, rather than federal, lawmaking. The litigation about a state's human rights law, Crosby v. National Foreign Trade Association, offers a second example. There, the majority focused on a Massachusetts' prohibition on purchasing goods made with forced labor as relating to foreign affairs, rather than police powers and state spending. Categorical federalism posits and promises clearly delineated allocations of power by suggesting that authority flows "naturally" through the history of the United States from a topic to a geographically-located government. As federal judges distinguish the "truly local" from the "truly national," they abjure responsibility by casting their project as an empirical one aimed at implementing agreements forged in 1789. But the reference back to the founding does not work, for the "federal" had yet to be made. And the descriptive claim about what "the federal" became also fails. Decades of constitutional law creates substantive rights anchored in the Fourteenth Amendment for parents and children, just as decades of federal legislation - addressing welfare, pension, tax, bankruptcy, and immigration - define membership in groupings denominated "families" by the national government. Further, both civil and criminal federal law regulate child support obligations. Similarly, as a descriptive matter, state and localities have an array of relationships with countries and norms outside the United States. And lawmaking by localities - such as Massachusetts's law related to forced labor - are products of networks that span local, national, and international organizations. Categorical federalism not only fails as a description, it is also harmful, for it deflects attention from the many political and legal judgments made by the national government in its regulation of the lives of current and former householders, and made by local governments in their relations with economies outside the United States. Just as it cloaks national and local powers from view, categorical federalism also provides a false sense of security from transnational lawmaking. To interrupt the embrace of categorical federalism, I offer another approach, termed multi-faceted federalism, which acknowledges the reliance on categories but refuses to ascribe a single mark of identity to a given law and which presumes governance may reside at multiple sites. When conflicts among legal regimes exist, multi-faceted federalism makes the assignment of preemptive power to a particular level of government but does so with a presumption against permanency. By examining shifting roles for women, by detailing the interrelationships among violence, family and women's economic capacity, and by examining changing laws both within the United States and beyond (such as the U.N. Convention on the Elimination of All Forms of Discrimination Against Women), this essay demonstrates that multi-faceted federalism provides a better description of current practices and a better set of aspirations for living in a world increasingly, and painfully, of permeable borders.

Prosecutorial ethics under the Reno rule: Authorized by law?

In some future case challenging attorney conduct in the course of a state-court trial, we may need to define with greater precision the weight to be given to recognized canons of ethics ... (1) Since at least 1908, state ethics rules have prohibited attorneys from communicating with persons represented by another attorney about the subject of that representation.(2) Today, all fifty states and the District of Columbia recognize this prohibition, known as the in one form or another.(3) While its precise wording and interpretation vary widely across jurisdictions,(4) the gist of the no-contact rule remains the same in virtually every state: unless permitted by opposing counsel or authorized by law, ex parte contact with a represented person about the subject of that representation is strictly forbidden.(5) The no-contact rule, along with most other ethics rules, is codified at both state and federal levels.(6) Courts and state bar associations aggressively enforce the rule, disciplining attorneys for unintentional contact, client-initiated contact--even attempted contact with a represented person.(7) Not everyone in the legal community has acquiesced in the no-contact rule's broad reach, however. Since 1980, the Department of justice (DOJ) has contended that its 7,000-plus federal prosecutors are exempt from the no-contact rule altogether.(8) Until the past five years or so, the Justice Department's position received relatively little attention.(9) That changed when its stance became official policy in 1989,(10) following a memorandum issued by then-Attorney General Dick to all Justice Department litigators.(11) The Thornburgh Memorandum, as the document came to be known, purported to exempt from the no-contact rule all federal prosecutors engaged in legitimate law enforcement activities.(12) Invoking the Supremacy Clause, the Justice Department maintained that states were precluded from regulating DOJ attorneys in ways that could interfere with their statutory responsibilities to enforce federal law.(13) The Memorandum sent shock waves throughout the legal community.(14) The Defense Bar Association, joined by the American Bar Association and others, condemned the move as a wink of encouragement for federal prosecutors to toss ethical considerations aside whenever doing so might help obtain a conviction.(15) Courts, too, were scathing in their response. To many judges, the Memorandum was itseLf an unconstitutional theft of judicial authority, clearly undeserving of the preemptive power of federal law.(16) After all, it was only a memorandum. Until this past year, that is. Under the direction of current Attorney General Janet Reno, the Department of Justice recently codified a slightly modified version of the Memorandum into a Departmental regulation, which I refer to below as the Rule.(17) Effective as of September 6,1994, the Reno Rule marks the zenith of a fourteen-year attempt by the Justice Department to exempt federal prosecutors from the no-contact rule. Not surprisingly, the Rule has sparked a debate of constitutional proportions, implicating both the Supremacy Clause and the separation of powers principle in a battle that may ultimately alter the balance of power between the state and federal governments--at least regarding the regulation of U.S. attorneys.(18) Despite otherwise intense disagreement on this issue,(19) both sides to the Reno Rule debate seem to agree on one point: unless resolved by Congress, the Reno Rule's authority to exempt federal prosecutors from the no-contact rule will be settled in court, perhaps the nation's highest.(20) That being the case, the justice Department's legal defense of the Reno Rule, as offered in the Rule itself, is certainly worthy of examination. In the analysis that follows, I undertake that examination, arguing that the Justice Department's position is analytically flawed in considering separately the Reno Rule's statutory authority and preemptive power over state laws. …

Federalism, State Authority, and the Preemptive Power of International Law

Previous articleNext article No AccessFederalism, State Authority, and the Preemptive Power of International LawLea BrilmayerLea Brilmayer Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 19941994 Article DOIhttps://doi.org/10.1086/scr.1994.3109650 Views: 14Total views on this site Citations: 1Citations are reported from Crossref Copyright 1995 The University of ChicagoPDF download Crossref reports the following articles citing this article:Curtis A. Bradley The Juvenile Death Penalty and International Law, SSRN Electronic Journal (Jan 2002).https://doi.org/10.2139/ssrn.348501

Preemptive Power: Floyd Hunter's "Community Power Structure" Reconsidered

Much of the analysis of community power has occurred within a cost of compliance paradigm. The character of this conceptualization of power leads inevitably to pluralist conclusions and results in a misreading of Floyd Hunter's Community Power Structure. The alternative conception presented here, one of preemptive power, allows a restating of Hunter's argument and enables us to see how power in a complex community can at the same time be fragmented (as seen through a command and compliance prism) and concentrated (in the form of preemptive occupancy of a strategic role). The concept of preemptive power also provides a way of comparing power in Atlanta during the initial era studied by Hunter with the current era of the mid- i98os. In a context of profound social and political change, such a comparison reveals continuities and modifications in the power position of business. Bachrach and Baratz (1970) were surely right in suggesting that there are two faces of power. Yet their concept of nondecision making has never fully fended off its critics. When Bachrach and Baratz applied their ideas in an examination of poverty in Baltimore, their analysis proved vulnerable to the charge that it was not so much a study of nondecision making as an account of how ideological and institutional change ultimately did alter the structure of power in that city. Defenders of pluralism have thus argued that either nondecision making is not all that different from decision making or that it is unresearchable (Polsby, I980; Wolfinger, 1971). Yet, despite these criticisms, many observers continue to believe that Bachrach and Baratz were on the right track in treating power as having more than one face.