Justice is in the Details: Law Scholars Work for the Collective Good

Thursday, February 12 2009

COLLEGE OF LAW CENTENNIAL: FOCUS ON FACULTY Feb. 12, 2009 Written by Donna Emert MOSCOW, Idaho – The quest to make sense of complex, current and historical information – often reflecting conflicting opinions – is undertaken with a definitive singularity of purpose by legal scholars. That meticulous attention to detail reflects a big picture understanding of the law and its far-reaching impacts. “Legal scholars have a responsibility to help legislators and judges – the people who make the law – make the law work for everyone,” said Annemarie Bridy, University of Idaho associate professor of law and law scholar. “The law, by nature, is constantly evolving and constantly in flux. An important goal of legal scholarship is to guide the law’s evolution in ways that balance competing interests in a fair way, for the collective good.” Idaho legal scholarship addresses some of the most pressing social and legal issues of our time, sparks informed discussion and ultimately shapes the law. Bridy’s most recent study, “Trade Secret Prices and High-Tech Devices: How Medical Device Manufacturers are Seeking to Sustain Profits by Propertizing Prices,” is a case in point. Soon to be published in the Texas Intellectual Property Law Journal, her research explores the ramifications of increasingly broader interpretations of the Uniform Trade Secrets Act (UTSA). Bridy provides evidence that UTSA currently is being reinterpreted to support a disturbing price dynamic in the medical device market. “I advance the argument that extending trade secret protection to device prices – or transaction-specific price information for any type of goods – would represent a perverse transformation of a legal regime grounded in the prevention of unfair competition between businesses,” wrote Bridy in her abstract. “The UTSA was not intended to provide legal cover for efforts by sellers to gain the upper hand in price negotiations with customers by cloaking sales prices in the mantle of trade secrecy." Bridy concluded that if this interpretation of the UTSA is accepted, and is allowed to spread, it eventually could give businesses of all kinds the power to keep their prices secret from consumers. “The admitted reason for which at least one medical device manufacturer was seeking trade secrecy for prices was to maintain its bargaining leverage in contract negotiations with buyers,” said Bridy. “This application of the law is completely foreign to the policy goals underlying trade secrecy, which are to encourage innovation and promote ethical business conduct between competitors.” Hospitals, and ultimately patients, must have the ability to comparison shop for high-tech medical devices, which include pacemakers and defibrillators, particularly since the choice between purchasing them and not often can be a life-or-death decision. “Whether device prices can be trade secrets as a matter of law is more than a doctrinal question about the proper scope of intellectual property rights,” Bridy noted. “It is also a health care policy question, the answer to which may directly impact national health care spending over the coming decades.” Bridy hopes her research will serve as a catalyst for change. Specifically, she suggests that a proposed 2007 amendment to the Social Security Act can be reshaped to directly prohibit price secrecy, and promote price transparency in the marketplace. “Putting accurate, comprehensible price information into the hands of health care consumers, be they hospitals or patients, is a necessary step toward improving the overall efficiency of our national health care system,” Bridy said. “Recognizing device prices as trade secrets would undermine hospitals’ efforts to contain the unsustainably rising cost of health care.” Bridy’s research, and that of her colleagues, will continue to have lasting societal implications and impact. In 2009, the University of Idaho College of Law celebrates its centennial. The college also has been recognized nationally for its distinct programs, including its clinical legal education, pro bono service, diversity initiatives, and cross-disciplinary fields of study, including environmental and natural resources law, business law and entrepreneurship, advocacy and dispute resolution, and Native American law. For more information about these events and about the University of Idaho College of Law legacy of legal education, visit www.law.uidaho.edu, e-mail uilaw@uidaho.edu or call (208) 885-4977.
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About the University of Idaho Founded in 1889, the University of Idaho is the state’s flagship higher-education institution and its principal graduate education and research university, bringing insight and innovation to the state, the nation and the world. University researchers attract nearly $100 million in research grants and contracts each year; the University of Idaho is the only institution in the state to earn the prestigious Carnegie Foundation ranking for high research activity. The university’s student population includes first-generation college students and ethnically diverse scholars. Offering more than 150 degree options in 10 colleges, the university combines the strengths of a large university with the intimacy of small learning communities. For information, visit www.uidaho.edu. Media Contact: Joni Kirk, University Communications, (208) 885-7725, joni@uidaho.edu

About the University of Idaho
The University of Idaho helps students to succeed and become leaders. Its land-grant mission furthers innovative scholarly and creative research to grow Idaho's economy and serve a statewide community. From its main campus in Moscow, Idaho, to 70 research and academic locations statewide, U-Idaho emphasizes real-world application as part of its student experience. U-Idaho combines the strength of a large university with the intimacy of small learning communities. It is home to the Vandals. For information, visit www.uidaho.edu.