SCOTUS on Privity via ContractsProf Blog:

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| Contract, General

Supreme Court Decides Case Involving Third-Party Beneficiaries Issue

Last week, the U.S. Supreme Court issued its opinion in Astra USA v. Santa Clara County in which it unanimously overturned a decision of the Ninth Circuit Court of Appeals.  The case was brought by Santa Clara County, which operates several 340B entities, that is, public hospitals or community health organizations involved in delivering medical services to the poor.  The county claimed a right to sue for overcharges on prescription medications provided through a PPA, or Pharmaceutical Pricing Agreement entered into between drug manufacturers and a division of the Department of Health and Human Services.  Although no statute created a private right of action to sue on such PPAs, the county claimed that it could sue as a third-party beneficiary of the PPAs to which the drug manufacturers had agreed.

Justice Ginsburg, writing for the Court, determined that permitting such third-party beneficiary suits would be incompatible with the statutory design.  The 340B program and its attendant PPAs are to be administered by the Secretary of HHS and her agents.  HHS oversight would be impossible if third-parties were permitted to set themselves up as independent enforcement agencies.  This is so because the drug companies are required under the statute to provide price information to the government so that it can set price ceilings.

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In Canada, Greens leader Elizabeth May Files Court Challenge To Be Included In Leaders’ Debate

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| Broadcasting, General

As in 2008, the decision has been made to exclude Green Party leader Elizabeth May has from participating in the televised (and widely watched) English and French leaders’ debates, to be held on April 12th and 14th. The decision was made by a consortium of television broadcasters based on regulations established by the Canadian Radio-television and Telecommunications Commission (“CRTC”). One of the key features of the CRTC rules is that broadcasters do not have to include the leaders of all political parties in election-related debates.

In 2008, after an enormous public outcry and the threat of legal action, the broadcasters backed down and allowed May to participate in the debates, thus setting the precedent for the inclusion of the Green Party Leader and for a leader of a party with no seats in the House of Commons. This time, though, the threat of legal action wasn’t enough and after it seemed Ms. May would not be allowed to participate, the Green Party filed an application for judicial review in the Federal Court of Appeal on March 31, 2011.

via thecourt.ca

In Canada, just as in Ireland, broadcasters’ duties of fairness are often tested by smaller parties’ claims to participation in election events, such as leaders’ debates.

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Promoting Progress with Fair Use

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| Copyright, Fair use, General

Promoting Progress with Fair Use

Joshua N. Mitchell

Duke Law Journal, Volume 60, April 2011, Number 7

via concurringopinions.com
Abstract:

The Intellectual Property (IP) Clause [of the US Constitution provides that Congress has the power “to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In the realm of copyright, Congress and the courts have interpreted the clause as granting Congress a power not to promote progress but to establish limited IP monopolies. To return to an understanding of the IP power better grounded in the constitutional text, Congress and the courts
should ensure that any IP enactment “promote[s] . . . Progress” by considering whether it improves the quality or quantity of knowledge and aids the dissemination of knowledge, and whether it does so better than prior IP enactments. The courts can exercise the fair-use doctrine to aid in this re-constitutionalization of IP law by applying a fifth fair-use factor. This proposed fifth factor would balance the progress-promoting value of the alleged infringer’s use against the progress-promoting value of enforcing the copyright holder’s rights. Reviewing courts should presume that any alleged infringement is fair if it promotes progress better than the enforcement of the copyright.

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Abramova and Croskery – updates

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| Academic judgment, Litigation, Universities

Burnett J’s judgment in Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB) (18 March 2011) – about which I blogged last week – is now available on BAILII. The [update: now defunct] Oxford Institute for Legal Practice successfully defended this case. On the other side of the line is Mike Austen who received £30,000 from the University of Wolverhampton in an out-of-court settlement in 2002. More and more students are now taking such cases. The Scotsman on the weekend reported recent Scottish examples of the phenomenon. Extract, (with added links):

Students sue universities for higher grades

By Fiona MacLeod, Education Correspondent

GROWING numbers of students in Scotland are taking legal action against their universities for failing to provide adequate support for degree courses. Six students across the country have taken out cases after receiving lower grades than they expected, according to the legal firm Ross Harper.

A spokesman for the firm said it was dealing with four cases of former students seeking legal action against their university, and added that a further two had settled through the institution’s own grievance procedure. The spokesman said that students now see themselves more as consumers of services and were more likely to complain when they believed university courses were sub-standard.

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Elder abuse still going unreported, says expert – The Irish Times

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| General

THERE IS a “massive gap” between the extent of elder abuse and levels of reporting, an expert on the issue has said.

Sarah Marsh, the Health Service Executive’s (HSE) dedicated officer on elder abuse in the Leinster region, said that while the HSE has handled about 5,000 reports of elder abuse in the past four years, there were likely to be many multiples of this happening.

Ms Marsh was addressing the first of a series of workshops aimed at raising awareness of the issue, organised by Age Action Ireland.

via irishtimes.com
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C&AG probes ‘unlawful payments’ at universities – National News, Frontpage – Independent.ie

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| General, Restitution, Universities

THE state spending watchdog has begun an investigation into the “unlawful” payment of millions of euro in allowances to senior university staff, the Irish Independent has learned.

The Comptroller and Auditor General’s (C&AG) office has agreed to a request from the Higher Education Authority (HEA) to assess exactly how much was spent on unauthorised payments between 1999 and 2009.

It is understood the investigation will be completed by May.

There has been an ongoing dispute between the HEA — the agency responsible for higher education — and the universities over how much was paid to staff at colleges including UCD, Trinity College, UCC, NUI Galway and the University of Limerick.

The HEA has already told a Public Accounts Committee that it will withhold millions in funding from the universities in a bid to get the money back.

The allowances, including incentives and performance-related bonuses, were originally discovered by the C&AG in 2009

via independent.ie

This issue is nowhere near as straightforward as the report suggests. Have a look at here.

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Birdwatchers lose RSPB defamation case – Telegraph

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Birdwatchers lose RSPB defamation case

 

TWO birdwatchers who sued the RSPB for criticising their research into an endangered species have lost their case after a judge said the courts should not be used for scientific disputes.

 

There are believed to be fewer than 1,000 Black Grouse in the country despite conservation and breeding efforts Photo: PA

 

11:41PM GMT 25 Mar 2011

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Gordon and Christine Bowker took their defamation claim against the RSPB to the High Court after the charity said their four-year study into the breeding cycle of the black grouse was “reckless” and “dangerous” and could have contributed to the bird’s decline.

Yesterday, Mrs Justice Sharp dismissed the couple’s case after accepting the RSPB’s argument that “scientific disputes are not for the courts”.

She said: “Scientific controversies must be settled by the methods of science rather than by the methods of litigation.”

via telegraph.co.uk

 

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