This Essay's purpose is to show how Trump v. CASA should be read-and how it emphatically should not be read. While CASA rejected one pathway to universal injunctive relief on statutory grounds, the decision simultaneously left intact a number of alternative routes to broad relief, including complete-relief injunctions, universal remedies under the Administrative Procedure Act and other statutes, class actions, and relief based on associational and state standing. The Trump Administration, however, has consistently advanced inflated readings of CASA-characterizing it as a far more sweeping limitation on remedial scope than the decision actually was-and has accused lower courts of flouting the decision. But a close examination of CASA's holding, reasoning, and limitations reveals why it is a grave error to portray lower courts that issue broad remedies in the wake of CASA as acting in defiance of the decision. Lower courts that are correctly perceiving CASA's metes and bounds and conscientiously grappling with them across a variety of contexts are not defying CASA's mandate, but rather are doing the work that CASA left them no choice but to do. Those who depict this judicial work as insubordination whenever it results in a broad remedy against the executive branch have fundamentally misunderstood the task that CASA left to the lower courts. By framing legitimate judicial deliberation as defiance, the Trump Administration's rhetoric threatens to poison intrabranch dialogue within the Article III judiciary and to corrode the legitimacy of judicial review. Ultimately, CASA's most immediate danger may lie not in its holding, but in the Trump Administration's instrumental use of the decision as part of its broader effort to undermine judicial review across the board. A correct understanding of CASA's actual scope-including its limitations and unresolved questions-is essential both for fending off strategic misrepresentations of the decision and also for preserving the foundational principle, articulated in United States v. Lee, that in America, all government officers, "from the highest to the lowest, are creatures of the law and are bound to obey it."
The number of federal departments and agencies focused on countering threats to the United States, protecting soldiers and civilians, strengthening the country's physical and digital infrastructure, and defending the political and constitutional structure from (primarily foreign) attack dwarfs the number in existence when Congress introduced the Administrative Procedure Act (APA). That statute sought to prevent the country from slipping into authoritarianism while ensuring that the United States retained the flexibility necessary for its own defense. It included exceptions related to military authority and foreign affairs alongside substantive and procedural requirements. Despite the carveouts, the APA has played an inextricable role in regulating the "National Security Administrative State" (NSAS), comprised of executive branch entities directed by Congress and the President to promulgate legally binding instruments to secure national security at home and abroad. Many of its provisions have a profound impact on the rights to life, liberty, and property; statutory and constitutional interpretation; and citizens' First Amendment right of access to government information. Yet the structure of the NSAS and the APA's role in limiting government overreach have flown under the radar, with treatises and scholarship all but ignoring it. This Essay breaks new ground, for the first time defining and providing an overview of the NSAS. While many instruments remain classified, an increasing number are subject to the APA. Courts have narrowed the foreign affairs exception and, in relation to the military exemption, become more sympathetic to servicemember claims. The APA's integration, moreover, is likely to grow. The Supreme Court's reasoning in Loper Bright Enterprises v. Raimondo is consistent with the APA's standards of review and comes at a time when courts have become less willing to grant deference in areas touching on national security. In light of the profound impact of the national security infrastructure on individual rights, the time is ripe to take account of the NSAS as an administrative entity.
Civil rights enforcement is often imagined as the work of lawyers in court. But over the course of the twentieth century, the administrative state quietly emerged as one of the most significant arenas for civil rights adjudication. In 2023 alone, individuals filed more civil-rights-related complaints with the Department of Housing and Urban Development, the Equal Employment Opportunity Commission, and the Department of Education than were filed across the entire federal court system. Yet today, the legal foundations and institutional infrastructure supporting administrative civil rights enforcement are crumbling. This Essay seeks to assess what is at stake in that collapse. It offers an account of what administrative civil rights adjudication does (or once did), the tools it provides, the enforcement possibilities it creates, and its comparative strengths and limitations. This account suggests there may be good reason to return some civil rights enforcement authority to private litigants and the courts. But it also shows that what may be lost in the administrative realm is not easily replaced: the state's own capacity to recognize, respond to, and remedy inequality.
When a court reviews an agency's regulation and finds it to be partially invalid, the court must determine the proper remedy. Should the court vacate the entire regulation, issue a remand to the agency without vacatur, or sever the offending portion and allow the lawful remainder to take effect? The issue of regulatory severability is increasingly important in administrative law after Corner Post, Inc. v. Board of Governors of the Federal Reserve System effectively eliminated the statute of limitations for APA challenges and Loper Bright Enterprises v. Raimondo ended judicial deference to agency interpretations of law. Few circuit courts or scholars have considered regulatory severability as a concept distinct from statutory severability. Yet as this Note argues, there is good reason for a difference to exist: While judicial review of statutes is governed by constitutional first principles, judicial review of regulations is governed by statutes. Indeed, in early administrative law cases, the Supreme Court looked to statutory review provisions to determine what remedies a court could provide for a partially invalid agency action. This Note advances a novel interpretation of the APA's judicial review provision as instructing courts to sever regulations where possible. The Supreme Court has repeatedly described the APA as the "fundamental charter of the administrative state." And in landmark cases from Darby v. Cisneros to Loper Bright, the Court has proven willing to overturn settled practices in the circuit courts when those practices fail to align with the APA's text. Obeying the APA's preference for severability is a critical next step in the wake of decisions rendering more agency actions more vulnerable to judicial second-guessing.
Multimember commissions are a central feature of the modern administrative state. Yet a growing number have lost their legal authority to function-not through statutory repeal or defunding, but because they lack a quorum. In many cases, these quorum losses stem from the President's assertion of a broad removal power, which causes vacancies in the commission's membership. Quorum losses lead to agency inaction, prevent the executive branch from ensuring faithful execution of the laws, and threaten the constitutional rights of individuals who appear before adjudicatory commissions. This Article presents an empirical study of quorum rules in multimember commissions. It traces how commissions lose their quorums, explores the consequences of quorum loss for administrative governance and individual rights, and analyzes the legal rules that govern when-and whether-a diminished commission may act. This Article makes three contributions. Doctrinally, it explains the body of common law that governs the transaction of business in multimember institutions and shows that courts have inconsistently applied these principles in the administrative law context. Empirically, it draws on original data to illustrate variation in the quorum and voting requirements within seventy-six multimember commissions. Normatively, the Article raises questions about the ways in which quorum losses may impact the ability of the executive branch to fulfill its constitutional and statutory responsibilities. We urge the application of commonlaw quorum and voting defaults in the face of statutory silence to preserve the deliberate structures Congress designed. We also contend that presidential removals that destroy quorum may be unconstitutional if they frustrate the executive's duty to faithfully execute the laws, and we call for relaxation of exhaustion requirements when agency inaction deprives individuals of judicial review. The Article concludes with recommendations for how Congress should restructure statutory quorum requirements.
This Article recovers the largely overlooked legal and administrative history of the federal loyalty program and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers-both through internal reforms initiated by the CSC and through judicial decisions that extended emerging administrative law doctrines into the domain of federal employment.
Corporations use bankruptcy to undermine collective worker power. They can run to bankruptcy court, for example, to shed collective bargaining agreements or tort judgments for sexual harassment and race discrimination claims. But when unions and workers fight back through collective action, corporations respond by filing tort suits, chasing the unions into bankruptcy. If unions were treated like corporations, they would be able to discharge those tort claims. But that is not the case. Instead, corporations often ask courts to deny unions the same protection that they receive on the basis that unions filed for bankruptcy protection in "bad faith" in order to evade tort liability. When examined through a law and political economy lens, this uneven application of discharge raises questions about whether bankruptcy's promise of a "fresh start" exists for corporations but not for the unions that challenge corporate power. This Article examines bankruptcy law's role in shaping collective power for labor unions and workers in three ways. First, it demonstrates that bankruptcy law's broad corporate discharge provision blunts the effectiveness of collective action tools. Second, it argues that if bankruptcy law provides no refuge for unions seeking relief from tort judgments arising out of their organizing and strike-related activity, then unions will limit their use of economic weapons during labor-management conflicts. Finally, the Article posits that the harmonization of bankruptcy and labor law regimes requires radical forgiveness of union tort liability when it is incurred through the socially beneficial exercise of collective worker power.
Artificial intelligence (AI) runs on data. But the two legal regimes that govern data-information privacy law and copyright law-are under pressure. Formally, each regime demands different things. Functionally, the boundaries between them are blurring, and their distinct rules and logics are becoming illegible. This Article identifies this phenomenon, which I call "inter-regime doctrinal collapse," and exposes the individual and institutional consequences. Through analysis of pending litigation, discovery disputes, and licensing agreements, this Article highlights two dominant exploitation tactics enabled by collapse: Companies "buy" data through business-to-business deals that sidestep individual privacy interests or "ask" users for broad consent through privacy policies and terms of service that leverage notice and choice frameworks. Left unchecked, the data acquisition status quo favors established corporate players and impedes the law's ability to constrain the arbitrary exercise of private power. Doctrinal collapse poses a fundamental challenge to the rule of law. When a leading AI developer can simultaneously argue that data is public enough to scrape-diffusing privacy and copyright controversies-and private enough to keep secret-avoiding disclosure or oversight of its training data-something has gone seriously awry with how law constrains power. To manage these costs and preserve space for salutary innovation, we need a law of collapse. This Article offers institutional responses, drawn from conflict of laws and legal pluralism, to create one.
Constitutional rights do not enforce themselves. The constitutional tort, generally taking the form of an action under either Section 1983 or Bivens, is one important vehicle for individuals to vindicate their constitutional rights. Jurists and civil rights scholars have documented the many barriers to relief under these two causes of action-official immunities, governmental immunities, and justiciability doctrines, to name a few.
The prison grievance regime is a quagmire. Civil rights literature and prison law scholarship have largely focused on the procedural impact of this regime, which has grown in the shadow of the Prison Litigation Reform Act's (PLRA) exhaustion mandate. When an incarcerated person endures abusive conditions, they must first file an administrative grievance with prison authorities and navigate the prison's complex labyrinth of procedural requirements before seeking relief in federal court. Because a single misstep can close the courthouse doors to incarcerated litigants, the PLRA-and the procedural critiques it has generated-has taken center stage when assessing the profound barriers the prison grievance regime poses to civil rights enforcement. This Article redirects the spotlight to expose a different malignancy. The prison grievance regime operates not only as a procedural shield for prisons but also as a substantive weapon. Tracing the history and progeny of the Supreme Court's decision in Jones v. North Carolina Prisoners'Labor Union, Inc., this Article explores what it terms "prison grievance creep": the doctrinal intrusion of prison grievances into constitutional rights-making and remedies in prison. Even when incarcerated litigants overcome the PLRA's exhaustion requirement and reach the merits of their civil rights claim, the prison grievance reemerges to curtail their pursued right. This Article is the first to theorize and examine this phenomenon. It outlines the evolution of prison grievance creep and explains how grievances have crept into, and significantly undermined, First Amendment and Bivens rights enforcement in custody. This analysis uncovers a critical pitfall in civil rights jurisprudence that further insulates prisons from accountability. By deconstructing the myths used to justify this creep, this Article offers a foothold to dismantle the creep's underpinnings.
In the last six years, the courts of appeals have issued in the first instance a spate of procedurally unusual, politically charged preliminary injunctions. Like "universal" district court injunctions, these appellate injunctions-which this Note calls preliminary injunctions pending appeal (PIPAs) and appellate temporary restraining orders (appellate TROs)-are premised on shaky statutory authority. And like "universal" injunctions, PIPAs and appellate TROs accelerate and degrade judicial output. This Note describes their history, statutory basis, and practical effects. The courts of appeals lack clear statutory authority to issue these orders. The All Writs Act-which the courts of appeals generally rely on to issue these injunctions-only allows courts to issue ancillary orders that protect their jurisdiction. Yet PIPAs and appellate TROs often conclusively resolve time-sensitive disputes, thereby destroying jurisdiction. Furthermore, the All Writs Act precludes courts from issuing orders that enlarge their jurisdiction. But because the courts of appeals issue PIPAs and appellate TROs using the same standard as district courts-and typically without affording the district courts due deference-PIPAs and appellate TROs arguably expand the courts of appeals' jurisdiction, in further violation of the All Writs Act. Moreover, aside from lacking legal authorization, PIPAs and appellate TROs have created serious procedural and substantive problems for courts and litigants. These orders have yielded uncertainty about parties' legal obligations by enabling litigants to quickly ricochet cases through the district courts, courts of appeals, and the Supreme Court before any merits ruling. Furthermore, these orders have helped collapse preliminary relief into expedited merits relief by effectively abrogating the requirement that movants show a risk of concrete, irreparable harm. Finally, these orders risk exacerbating the perception that courts act politically, because these orders often lack reasoning, apply inconsistent legal standards, and encourage forum shopping.
It has been just over three years since the Supreme Court instructed lower courts to evaluate Second Amendment challenges by examining history and tradition. And it is no secret that the courts have struggled. This Article tackles a phenomenon that is born of that struggle. Overwhelmed by the task of evaluating historical claims, lower courts instead are turning to other judges as authorities on history. They are using what I call in this Article "historical precedents"-meaning language about history from an older decision that the subsequent judge then treats as authority, not as part of a legal rule but for the truth of the matter asserted. This practice presents a very interesting puzzle: Once the Supreme Court blesses a historical source or a historical narrative, does that conclusion-in and of itself- bind other courts to the same answer about what happened in the past? The question is more than just an academic head-scratcher. It creates significant practical concerns. The Supreme Court is not designed to be a fact-finding institution, nor are the Justices trained historians. They can make mistakes, or our understanding of the history can change, and, in any event, some language that recites historical claims-particularly when appearing in separate opinions-is not contemplated with the kind of scrutiny that comes when a legal rule is debated. These realities make entrenching historical precedents throughout the judicial hierarchy a risky endeavor. To be sure, lower court judges are in a tight spot when it comes to managing Second Amendment litigation, and this Article seeks to help. I assume a good-faith judge trying to comply with the Supreme Court's instructions and tempted to clear issues off the docket by citing someone else's answers to a historical question. That shortcut is not always appropriate. Not all historical claims are the same, nor were they all similarly thought through by the first decisionmaker. We must look under the hood, so to speak, before accepting the work and the conclusion as truth. Ultimately, my goal in this Article is to draw attention to an unappreciated real-world consequence of the Supreme Court's turn to history and tradition, and to begin the task of reckoning with it.
Attention has become one of the most heavily extracted and commodified resources in modern market economies. Firms now supply a wide range of everyday digital products and services in exchange for increasingly vast amounts of attention. A technodeterministic account portrays this as inevitable, the result of abstract "market forces." But the ongoing shift of activity into digital attention markets has not occurred in a legal vacuum. This Article is the first to undertake a broad-based survey of how general tradegoverning laws have treated attention exchange. These laws, which run the gamut from property and contract to privacy, antitrust, and tax, exhibit what appear to be crossdisciplinary conflicts, internal contradictions, and coverage gaps. But upon closer examination, these phenomena are not random. Two common threads exist: Law has systematically channeled activity into attention markets by privileging attentionextractive business strategies, and law has concentrated power into corporate attentionextractive firms by permitting consolidation and disempowering individuals. U.S. laws already deeply structure attention markets and do so in ways that incentivize resource extraction and facilitate domination. Highlighting the contingent role of law in constructing current forms of attention capitalism significantly expands the range of possibilities for restructuring these markets. Toward that end, the Article offers not only a robust, interdisciplinary paradigm to help guide such a project, but also a set of concrete policy prescriptions that would pause-and ultimately reverse-the status quo.
Since 1988, when Congress passed the Indian Gaming Regulatory Act (IGRA) into law, many Indian tribes have established gaming as a vital source of economic and political sovereignty. The process envisioned by IGRA, however, has allowed private actors to challenge tribal gaming operations by suing state and federal entities that negotiate the gaming operations with the tribes, rather than the tribes themselves. These third parties have succeeded in legal challenges enjoining tribal gaming without ever making the operating tribe a party to the suit. Tribes, protected by the well-established doctrine of tribal sovereign immunity, frequently intervene in these suits under Rule 19, arguing that their inability to be joined necessitates dismissal of the case. An emerging disagreement among federal circuit courts underscores the procedural and practical difficulties that courts face in weighing these interests, particularly in assessing whether existing federal or state defendants can adequately represent absent tribal interests such that the case can proceed "in equity and good conscience." This Note argues that consistent with the deference under Rule 19 case law accorded to other sovereigns, there should be a presumption of dismissal when tribes cannot be joined in discrete gaming challenges due to tribal sovereign immunity. In doing so, this Note examines Indian gaming challenges as a unique form of Administrative Procedure Act litigation and catalogs where federal, state, and tribal gaming interests diverge, underscoring why this divergence poses significant legal and practical threats to tribal sovereignty in a budding area of contemporary Indian law.
The history of the state's intrusions on the rights of marginalized parents has become central to today's critical accounts of American family law and family courts, and rightly so. Missing from the conversation, however, is a full account of how those rights first entered the law, and how the state assumed its now-familiar, though often unfulfilled, obligation to afford due process to the parents and children it separates. This Article is the first to locate that transformation in a now-forgotten wave of habeas litigation brought by parents seeking their children's return from orphan asylums and juvenile reformatories-the institutions that comprised the nascent child welfare and juvenile justice systems in the late nineteenth century. Those conflicts are visible in archival sources and a set of state court cases that have not received systematic study. Drawing on those sources, this Article argues that modern understandings of the right to family integrity were forged through legal challenges to the state's growing power to remove children from their parents in the name of child welfare from the Civil War through the Progressive Era. Parents, as habeas petitioners, pushed courts to recognize and enforce their rights to notice and an opportunity to be heard, to draw a distinction between child neglect and family poverty, and to affirm parents' right to regain custody after they remedied the reasons for the child's removal-establishing the core legal principles that delimit the state's power today. Recapturing the story of resistance to the inception of the family regulation system offers insights for today's efforts to transform or dismantle that system and deepens our understanding of the genesis and function of constitutional family rights. Critically, recovering this line of cases provides a more complete account of the history and tradition in which substantive due process protections for family autonomy are rooted. This account also lends support to more ambitious conceptions of the right to family integrity, advocated today as a tool for expanding legal protections against family separations and terminations of parental rights, as well as affirmative entitlements to state assistance for childrearing. At the same time, the records of parents' legal challenges offer a warning about the limits of procedural rights and litigation as means of advancing parents' and children's interests absent a more radical redistribution of public resources to meet families' material needs.
This Article excavates unfamiliar stories about contracts doctrine and the violence of slavery. One such story begins with six-year-old Martha, whose bill of sale warranted her "to be sound." When Martha's purchaser found her unable to perform the "duties that might be reasonably assigned to a child," however, he sued for breach of warranty, alleging that Martha was "absolutely an idiot, and of no value." In response, Martha's vendor claimed that she was in fact sound and that her "dullness" was merely the result of "having been badly treated." Cases like Martha's-decided in Tennessee and published as Belew v. Clark-were common in the antebellum South, as purchasers of slaves routinely sued vendors for breach of warranty. These warranties drew courts into the very heart of slavery's violence, where they were called upon to answer questions about how much violence was necessary and acceptable for the slave regime to work. Questions such as: How much violence did an enslaved child need to endure before her injuries constituted a breach of warranty? Through an analysis of 152 appellate cases heard in five Southern states (Mississippi, South Carolina, Tennessee, Texas, and Virginia), this Article finds that warranties of soundness were one of the few sites where the law intervened in the violence of slavery. By changing the risks and incentives associated with slaveowners' violence, warranties of soundness also shaped the very forms that said violence took.
In 1998, the Supreme Court established a standard for employer vicarious liability for sexual harassment in the cases Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Together, these cases hold that an employer is presumptively liable for any actionable sexual harassment by a supervisor. No affirmative defense is available when harassment results in tangible employment action; however, when harassment does not result in tangible employment action, an employer may raise an affirmative defense to liability and damages. Rather than attempting to settle the debates over whether the Faragher-Ellerth affirmative defense is good public policy, this Note advances a distinct, novel, and more fundamental critique of the Faragher-Ellerth regime: that the affirmative defense is problematic because it privatizes the adjudication of a civil right. Although the affirmative defense is pled in court, its effect is to make employers' training and reporting systems outcome-determinative, thereby deferring to employers' regulation of sexual harassment. This Note argues that, by shifting the enforcement of anti-sexual harassment principles from legal proceedings to corporate self-regulation, the Faragher-Ellerth regime ignores the essential nature of the harm of sexual harassment: the violation of the victim's civil rights and public claim to equal citizenship. Privatization of sexual harassment adjudication, then, is fundamentally incompatible with the underlying antidiscrimination principles foundational to sexual harassment jurisprudence.
With the emergence of large language models (LLMs) like ChatGPT, scholars and courts have fervently debated whether LLMs' training on and reproduction of copyrighted materials amounts to fair use. But in a recent series of cases, a lesser-known challenge to LLMs has reared its head: & sect; 1202 of the Digital Millennium Copyright Act. This provision requires that when a work is copied, its associated copyright management information (CMI)-such as its license or terms of use agreement-be copied with it. This requirement was originally intended to modernize copyright for the internet by ensuring that all users would be aware of the terms of their use. Now & sect; 1202's unintended overbreadth threatens to block LLM development and use as it swallows questions of infringement and fair use entirely. This Note posits that & sect; 1202 is broader than traditional copyright infringement doctrine in three critical respects: It imposes liability without any showing of copyrightability, provides no fair use defense, and permits disproportionate statutory damages. Although & sect; 1202 includes an intent requirement, courts have applied it so minimally that it fails to constrain the statute's reach-especially in the LLM context, where the mere act of violating & sect; 1202 may itself suffice to establish intent. To restore meaningful limits to & sect; 1202, this Note proposes that courts adopt an identicality requirement for & sect; 1202 claims against LLMs. The requirement would cabin liability to outputs that exactly match training data-cases where the removal or alteration of CMI is both clear and technically avoidable. This approach mirrors Congress's existing accommodation of industry limitations for broadcasters in cases of technical infeasibility or financial hardship. A similar understanding for LLMs would preserve & sect; 1202's core purpose, resolve a growing district court split, and ensure that the most consequential copyright question raised by generative artificial intelligence is answered on its merits- not sidelined by a statute never meant to decide it.
Sellers across a wide range of industries increasingly delegate pricing decisions to computers. Their pricing algorithms can improve market efficiency by reacting immediately to changes in supply chains and market demand. But these programs can also aid and conceal harmful anticompetitive behavior. Under the Biden Administration, the Federal Trade Commission expanded the scope of antitrust enforcement and brought claims against such algorithms, even amid concerns that these actions would deter beneficial business conduct. But to fully address the emerging risks from pricing algorithms, antitrust law would have to be pushed even further. While scholars and agencies scrutinize highly sophisticated artificial intelligence, little attention has been paid to another prevalent threat: simple, "gullible" pricing algorithms. With a few clicks, millions of online retailers can easily implement programs that automatically mimic competing prices. These algorithms-and others like them-can reliably collude on accident, without human agreement or intent. As such, they are common, anticompetitive, and outside the reach of even expanded conceptions of antitrust law. This Note situates these gullible agents within antitrust literature, examining their prevalence and the challenges they pose to existing enforcement frameworks. As antitrust agencies continue to reassess the breadth of their authority, this Note argues that antitrust law is ill-suited to protect consumer welfare from gullible agents without threatening beneficial business conduct. This Note instead proposes that the users of pricing algorithms be subject to a duty of care regarding the gullibility of their systems.
In pharmaceutical patent cases, the drug label is often the primary piece of evidence regarding whether generic drug companies induce doctors to infringe brand drug companies' patents. But a series of recent decisions from the U.S. Court of Appeals for the Federal Circuit has taken this focus on the label too far. Rather than assessing what doctors actually did (or would do) based on a drug label, the Federal Circuit has treated drug labels as if they were patent claims, assessing whether their text merely "contains" a patented method of use. This has yielded a new, problematic doctrinal turn-what we call "infringement by label"-that threatens generics' ability to enter the market, even when their products would not actually cause doctors to practice any of the brands' patents. Infringement by label spotlights the Federal Circuit's misunderstanding of drug labeling at the U.S. Food and Drug Administration (FDA) and a lack of clarity in the court's case law about the nature of induced patent infringement, the theory of infringement most common in label-focused drug patent litigation. By identifying these deficiencies, this Article aims to return drug patent litigation to its factual and doctrinal moorings. At the same time, we show how the Federal Circuit's infringement-by-label theory underscores several broader, unresolved questions in patent law-namely, whether the interpretation of drug labels is an issue of law or fact; whether the objects of induced infringement are statements made by the defendant or how such statements are perceived by a direct infringer; and how to construct a hypothetical direct infringer to prove inducement. Answering these questions would improve pharmaceutical patent litigation and clarify how generics can enter the market while being faithful to the FDA's drug labeling regime.
