Introducing C. Scott Hemphill
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Had Scott Hemphill set up a Google Alert for his name, his devices would have been buzzing on May 7, 2015. The New York Times had quoted him in an article about the possible implications of Google’s foray into the wireless market. And a California Supreme Court opinion cited three of Hemphill’s articles in deciding an important antitrust case about agreements that create or perpetuate monopolies in the pharmaceutical industry.
“It was a big day, a very welcome surprise. I think of it as a big win for legal scholarship,” says Hemphill, who teaches and writes about antitrust, intellectual property, and industry regulation. After a visiting professorship last spring, Hemphill left Columbia Law School, where he had taught since 2006, to join NYU Law.
Hemphill is often credited with coining the term “pay for delay” in referring to reverse payment agreements, the subject of the California case. He has testified before congressional committees on the legality of such agreements and laid the groundwork for the US Supreme Court’s 2013 decision in FTC v. Actavis. “His work strongly influenced the debate and ultimately the Supreme Court, which decided the case in the way Scott had suggested,” says Columbia’s Tim Wu, who teaches copyright and antitrust and has served as a senior adviser at the Federal Trade Commission.
In works such as “Paying for Delay: Pharmaceutical Patent Settlement as a Regulatory Design Problem” (NYU Law Review, 2006), Hemphill attacks the agreements, in which pharmaceutical companies pay generic drugmakers to settle patent disputes and delay a generic drug’s entry into the market. He believes that these agreements violate antitrust law, hurt consumers, and encourage makers to tweak existing drugs rather than develop new ones.
Two weeks after the California decision, the Second Circuit affirmed a preliminary injunction in a “product hopping” case that he advised the New York Attorney General’s Office to bring, one also involving a drugmaker’s attempt to prevent generic competition. It was, he says, a big win for consumers. “His work in this area is making an impact,” says Stanford Law’s Mark Lemley, who co-authored a 2011 antitrust article with Hemphill.
Colleagues say Hemphill is a rigorously accurate academic—“a chef whose every ingredient is exactly right,” says Wu—with a contagious joie de vivre. “He applies his powerful, analytic mind not only to antitrust questions, but to what kind of grill he should buy or the best way to cook something,” says Jeannie Suk of Harvard. “He’s a dream coauthor, a real stickler for getting things right. He won’t ever let you make mistakes.” Hemphill and Suk have co-authored several articles about the weak IP protection in the fashion industry.
Hemphill grew up in Johnson City, Tennessee, in the foothills of Appalachia, the oldest of three siblings. A teacher and school board member, “Mom knew everyone in the town,” he says. “Dad was the doctor.” To say he was a good student is an understatement. Described by friends as a “Doogie Howser type,” he skipped sixth and seventh grades, then extended high school by a year in order to enter Harvard at 16 instead of 15.
He wanted to be a chemist. “But I was an atrocious lab partner,” he says, “a danger to myself and others.” Graduating in 1994, Hemphill went to work for the management consulting firm William Kent International, which fueled his interest in economics and law. He earned his master’s degree from the London School of Economics and Political Science in 1997, his law degree from Stanford Law School in 2001, and his doctorate in economics from Stanford University in 2010. During the same period, from 2002 to 2004, he clerked for Judge Richard Posner of the US Court of Appeals for the Seventh Circuit and US Supreme Court Justice Antonin Scalia.
Adamant about keeping his foot in “the real world,” he says, he took a year’s sabbatical in 2011 to become chief of the Antitrust Bureau for the New York State Attorney General. He also writes for mainstream outlets including Slate, the Wall Street Journal, and Science.
Hemphill is enthusiastic about heading downtown for this new chapter in his life. “NYU has experts across the full range of IP and innovation. It’s really exciting to be part of this team,” he says. Once he gets outside the confines of Vanderbilt Hall, he likes to walk the High Line and dine on his communal terrace with his wife, Laura, a novelist, and their toddler, Mia. Their apartment has picture windows looking out onto the often-noisy street below, but Mia likes it, and that’s enough for her doting dad. “She can see taxis, buses, and sometimes even cement mixers, just like her favorite book, Goodnight, Goodnight, Construction Site,” says Hemphill, ever the optimist.