Entrapment, Punishment, and the Sadistic State

The entrapment defense is a uniquely American institution, adopted in all American jurisdictions, and almost nowhere else. But while case law and scholarly literature dwell at length on entrapment’s what (what constitutes entrapment; the legal test to be applied), and sometimes on its who (who should rule on entrapment, judge or jury; who qualifies as a state actor), they have comparatively neglected its why—the underlying justification for a defense that, on further examination, seems to violate some of the most basic principles of criminal law jurisprudence. Why should someone who commits a crime, with a criminal state of mind, be found not guilty because the one who tempted him to commit the crime, an otherwise irrelevant fact, was—entirely unbeknownst to him—a police agent? 

This Note first shows the insufficiency of existing justifications of the entrapment defense, then provides a more comprehensive explanation for the doctrine. This explanation reveals entrapment to be not a procedural “technicality” protecting a value extrinsic to the underlying prohibition, but rather a substantive defense whose roots run right to the criminal law’s heart: our reasons for punishment. A “punishment-centered” view reveals entrapment to be a manifestation of a totalitarian “sadistic state,” which treats the infliction of punishment not as a means of giving the guilty their just deserts, but as an end in itself, and shows the entrapment defense to be not only a limit on police investigatory technique, but an assertion of individual liberty against the state’s ability to punish.

Authorized Generics: A Prescription for Hatch-Waxman Reform

Authorized generics present the latest controversy in the perennial battle between pioneer and generic drug manufacturers. Under these arrangements, a pioneer firm will “authorize” a generic version of its brand-name drug to enter the market during another generic competitor’s 180-day exclusivity period. This practice has generated intense debate within the pharmaceutical industry regarding its potential impact on Paragraph IV patent challenges, in addition to the proper operation and intent of the Hatch-Waxman Act. Because of the immense economic and public health consequences at stake, and previous patterns of Hatch-Waxman abuse, the Federal Trade Commission has recently launched an investigation of authorized generics.

This Note explores the qualitative nature of pharmaceutical competition, specifically focusing on the interaction between pharmaceutical supply chain economics and consumer behavior. From these observations, I propose a theory of competitive harm and conclude that authorized generics are an anticompetitive strategic behavior which violate the antitrust laws by deterring Paragraph IV entry. I find normative support within the Hatch-Waxman and patent law regimes to corroborate my antitrust analysis. Finally, I recommend potential solutions to the authorized generics controversy, including Hatch-Waxman legislative reform.

How to Construe a Hybrid Statute

This Note addresses the interpretation of statutes creating civil and criminal liability with identical or nearly-identical language. It illustrates how, if conventional interpretive rules are applied, these “hybrid” statutes can receive a (problematic) path-dependent interpretation: the statute’s meaning will depend on whether an ambiguity first comes to light in a civil or criminal case. However, the most obvious solutions to this problem – applying lenity in all civil cases arising under hybrid statutes and dual construction of identical language – are unsatisfactory. Dual construction is seldom if ever appropriate, because of the descriptive force and normative attractiveness of the consistent usage canons. Moreover, an unthinking application of lenity in all civil cases would seriously impair the operation of many important statutes, and probably frustrate legislative expectations. Instead, this Note argues that language common to the civil and criminal portions of hybrid statutes should, presumptively, be construed both consistently and evenhandedly. In other words, glosses rendered civilly should apply criminally and vice-versa, and the mere existence of a certain level of ambiguity should not presumptively resolve the interpretive question either way.