Lisa Larrimore Ouellette

The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication.

Public Perceptions of Government Speech

The Supreme Court accords starkly different treatment to private expression and government speech for First Amendment purposes. While regulation of private speech generally must be viewpoint neutral, the government is subject to no such requirement when it engages in speech of its own. But the line between private expression and government speech is often fuzzy. To draw this distinction, the Supreme Court has placed increasing emphasis on whether members of the public reasonably perceive the relevant expression to be private or government speech. We think this turn toward public perception is a welcome development: government intervention in the marketplace of ideas is especially dangerous when it is nontransparent, so before allowing government officials to escape the viewpoint-neutrality requirement, courts should verify that the public actually perceives the speech in question to emanate from the government. But the Court has so far failed to develop a reliable method for determining how ordinary citizens distinguish between private and government messages, relying instead on armchair speculation. Meanwhile, scholars have not yet mustered any evidence as to when and why individuals understand messages to be private expression or government speech. To begin to fill this empirical void, we presented a variety of speech scenarios to a nationally representative sample of more than 1200 respondents and asked the respondents to assess whether the speech in question was the government’s. Some of the speculative claims made by the justices in recent government speech cases are borne out by our survey, but others prove less accurate. We further find that respondents are somewhat more likely to attribute messages to the government if they agree with those messages themselves; in this respect, lay people may be little different from judges, whose decisions in government speech cases sometimes seem to be influenced by ideology. We end by considering whether courts should consult survey evidence in resolving cases that involve government speech claims. An advantage of survey experiments is that they can be used to disentangle the effects of medium from the effects of message, reducing the risk that government speech doctrine will systematically favor some messages over others. To be sure, the use of survey evidence raises a number of implementation issues that require careful thought, but we ultimately conclude that an empirically informed government speech doctrine would protect First Amendment values more successfully than a doctrine dependent upon judicial guesswork.

Selling Patents to Indian Tribes to Delay the Market Entry of Generic Drugs

In September 2017, Allergan Plc announced that it had transferred the 6 patents for cyclosporine ophthalmic emulsion (Restasis), its blockbuster drug for chronic dry eye, to the Saint Regis Mohawk Tribe, a federally recognized Indian tribe of about 15 000 members in rural upstate New York with a

Who reads patents

50 million annual budget. The Tribe received

Nanotechnology patents are useful but could be improved

13.75 million initially and is eligible for

The Polarizing Impact of Science Literacy and Numeracy on Perceived Climate Change Risks

15 million in annual royalties—a small fraction of the roughly

Do Patents Disclose Useful Information

1.5 billion in annual US revenues for Restasis. The deal allows the Tribe, as the patents’ legal owner, to assert what is known as sovereign immunity in a proceeding at the US Patent and Trademark Office (USPTO) where Mylan Pharmaceuticals, a generics manufacturer, is challenging the patents. Mylan’s proceeding before the USPTO is an instance of what is called inter partes review. Created in 2012, this novel procedure allows any party to ask the USPTO to reconsider whether it should have granted a patent. Because inter partes review gives challengers legal advantages not available in court proceedings, generic manufacturers increasingly rely on it to challenge pharmaceutical patents.1 Mylan, for instance, is arguing that Allergan’s patents are either not novel or obvious in light of earlier work. But just a week before the USPTO was to begin hearings on the Restasis patents, Allergan announced the patents’ transfer to the Tribe and argued that tribal sovereign immunity requires dismissal of the inter partes review proceedings. The latest of many efforts by brandname pharmaceutical manufacturers to delay entry of lower-priced generics,2 this legal strategy was the brainchild of the law firm Shore Chan DePumpo LLP. After successfully invoking state sovereign immunity in another USPTO proceeding earlier in 2017, the firm reportedly proposed the patent transfer concept to several tribes before brokering the deal between the Saint Regis Mohawk Tribe and Allergan.3 Further complicating the situation is a separate case in the Eastern District of Texas, where Allergan had previously sued Mylan and other generics manufacturers for patent infringement. The generic companies responded by arguing that the patents are invalid, and in October 2017, the district court ruled in their favor. Although the Saint Regis Mohawk Tribe did not assert its immunity in this proceeding, the judge nonetheless criticized Allergan’s deal with the tribe “as part of a scheme” for Allergan “to evade their legal responsibilities.”4 The decision to invalidate the patents will now be reviewed by the Court of Appeals for the Federal Circuit, and its decision may ultimately make the sovereign immunity question in the USPTO proceeding moot. The issue of whether sovereign ownership is a viable strategy to protect patents transcends this particular dispute, however. At the core of this tactic is the legal concept of sovereign immunity, the principle that sovereigns cannot be sued without their consent. This doctrine might strike nonlawyers as bizarre, and is controversial among lawyers and legal academics. Defenders of sovereign immunity argue that the principle preserves each sovereign’s dignity and protects public finance by stopping lawsuits seeking damages. Numerous sovereigns enjoy immunity under US law: the federal government, the 50 states (including their state universities) and the US territories, foreign nations, and the 567 federally recognized Indian tribes. Tribal sovereignty stems from tribes’ existence as sovereigns both prior to and after the creation of the United States, and has been recognized by the US Supreme Court since the early 19th century. Although several justices have expressed skepticism about tribal sovereign immunity, the doctrine has survived multiple challenges before the Court. As recently as 2014, the Court upheld the immunity of the Bay Mills Tribe against a suit by Michigan for off-reservation gaming activities.5 State sovereign immunity has been used to shield state-owned patents. In 2017, the USPTO dismissed inter partes review petitions in 3 cases where the patent owner was a state university.6 Two of these involved healthrelatedtechnologies:apatentonmethodsforcardiacvalve repair owned by the University of Maryland, and a patent on a method of integrating treatment data from multiple bedside machines owned by the University of Florida Research Foundation—the case litigated by Shore Chan DePumpo. If followed by the USPTO, these precedents would seem to similarly bar inter partes review of the Restasis patents now owned by the Saint Regis Mohawk Tribe. But these issues of sovereign immunity and patent lawarenovel legalquestionswithoutanyguidingdecisions from higher courts. The Court of Appeals for the Federal Circuit, which hears all appeals involving US patent law, has yet to review any of the state university sovereign immunity decisions from the USPTO. One potential resolution involves Congress: both Senate and House members have expressed concern about the deal’s potential effect on drug prices, and in October 2017, Senator Claire McCaskill (Democrat from Missouri) introduced legislation that would strip tribes of sovereign immunity in inter partes review proceedings.7 It seems difficult, however, to justify singling out tribes while permitting other sovereigns such as state universities to invoke immunity. In our view, a better solution would address sovereign immunity in patent law more generally. Although constitutionally Congress cannot directly alter state sovereign immunity the way it can for tribes,8 it can induce states to waive immunity by attaching it as a condition to receive VIEWPOINT

How Many Patents Does It Take To Make a Drug? Follow-On Pharmaceutical Patents and University Licensing

Biotechnology and chemistry researchers look to the patent literature as a source of technical information more than researchers in other fields, and few researchers are deterred from reading patents by concerns about enhanced legal liability.

Beyond the Patents-Prizes Debate

in the turnover number and container volume, increases throughput substantially (Fig. 1d,e). The numerical solution can be illustrated by dividing the output of the first enzyme (GOx) into a direct stream to the second enzyme (HRP) and a stream into the surrounding volume. While the direct stream leads to a constant rate of product formation by the second enzyme, the concentration of H2O2 in the surrounding volume grows linearly with time and makes a linearly increasing contribution to product formation: