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A Prisoner’s Dilemma: Why COVID-19 Must Serve as a Catalyst to Address Compassionate Release Limitations in Federal Prison
Get PDFCOVID-19 significantly impacted the U.S. prison population. Given concerns surrounding its rapid spread through prisons, many federal inmates petitioned for compassionate release during the pandemic’s initial months. This significant increase in compassionate release petitions has yielded an impactful case study regarding the significant limitations posed by the compassionate release statute as written—particularly related to its exhaustion of administrative remedy requirement. Under the First Step Act of 2018, inmates must exhaust their administrative remedies before petitioning the district court for compassionate release. With concerns surrounding COVID-19 spread, some federal district courts allowed the waiver of the exhaustion requirement, while other did not. Although the present waiver issue has somewhat resolved itself with time, the exhaustion issue remains for future health crises. This Note considers the current limitations of the compassionate release’s exhaustion requirement by analyzing the court split and assessing the statute’s plain language, congressional intent, and federal case law. The Note argues that, given the statute’s clear ambiguity and courts’ inability to fully address the issue, the legislature must clarify the First Step Act’s intention to ensure that judicial discretion is available in all circuits to waive the compassionate release exhaustion requirement during other similar national health emergencies
Will Competition Reduce Attention Costs in Social Media?
Get PDFUnlike other monopolies, social media networks almost uniformly give access to their services for free to everybody. Economists refer to these markets as “zero-price markets.” The main, and often sole, source of revenue for the network owners comes from fees that are paid by advertisers. Network owners offer access to users in exchange for users’ attention to advertisements. Economists refer to these implicit market exchanges under the heading of “attention economy.” Regulatory solutions and antitrust remedies have been considered to foster cost reduction in the market economy. This paper investigates the conditions under which an increase in competition in the social media market would reduce the attention cost problem highlighted in the literature. Contrary to intuition, this paper shows that an increase in competition in the social media market could increase, rather than decrease, the attention costs imposed on users. Social media networks with monopoly power charge higher prices to advertisers to maximize their profit. Competition in the social media industry would lead to lower (competitive) prices for advertisers which lead to more advertising and higher attention costs imposed on users
An Unrecognized State as an International Investment Law Actor: The Innovation of Taiwan\u27s New International Investment Treaties
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Brady Lists
Get PDFBrady lists, named after the Supreme Court’s 1963 decision Brady v. Maryland, are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility. The lists serve as tools for prosecutors to track officer misconduct and disclose that information to defense counsel where appropriate. Although Brady lists have existed in some form for decades, they have garnered considerably more attention and controversy in the past several years. Brady lists are the subject of extensive media interest and litigation, but surprisingly little legal analysis or scholarship. This article provides a thorough examination into laws and practices surrounding use of Brady lists, as well as controversies arising from these lists. The results of this examination are disturbing. Nearly sixty years after the Brady decision, the legal system has almost completely failed to create or mandate effective policies for tracking and disclosing information about law enforcement misconduct. Only one state requires prosecutors to maintain Brady lists, and few jurisdictions regulate them at all. Prosecutorial practices for disclosing exculpatory information regarding law enforcement officers vary enormously, and often depend on the changing whims of elected officials. While thousands of law enforcement officers with histories of misconduct continue to work and testify in criminal cases, many prosecutors have no Brady lists and no coherent policies for collecting or disclosing police misconduct information. The legal system’s apathy in addressing these issues tells a sad tale of unconcern for both police misconduct and wrongful convictions
Patent Law’s Deference Paradox
Get PDFCourts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no deference. Patent law, however, does it backwards. The decision of a single examiner at the Patent Office to grant a patent—a decision made under significant time pressure and with incentives skewed in the applicant’s favor—receives substantial deference when the patent’s validity is later challenged in court as a defense to an infringement lawsuit. Issued patents are, by statute, presumed to be valid, so the challenger must prove the patent is invalid by clear and convincing evidence. But when a panel of expert administrative judges at the Patent Office has reassessed the validity of an issued patent in trial-like, adversarial proceedings, a de novo standard of review often applies when the Patent Office’s decision is appealed to the Federal Circuit. This Article identifies and critiques patent law’s deference paradox, under which the Patent Office’s least deliberate decisions receive the most judicial deference and its most deliberate decisions get the least deference. Two reforms would eliminate this paradox. First, the presumption of validity should be weakened by the courts or eliminated by Congress. Second, the Supreme Court and the Federal Circuit should stop describing patent validity as a question of law, which is what causes the Patent Office’s validity rulings to be reviewed de novo on appeal. Instead, those courts should hold that an invention’s patentability is a mixed question of law and fact because it mainly involves applying the law to the facts of a particular case. These changes would meaningfully improve the patent system. Doctrinally, they would simplify patent law’s deference framework by granting all of the Patent Office’s patentability determinations the same, sliding-scale deference under the Supreme Court’s decisions in Skidmore v. Swift & Co. and United States v. Mead. As a matter of policy, this framework would better reflect how the patent system actually works: Initial examination is perfunctory, so examiners’ decisions to grant patents should be closely scrutinized when a defendant accused of patent infringement argues, in court, that the patent is invalid. Post-issuance administrative review at the Patent Office, on the other hand, is increasingly elaborate and now often substitutes for court litigation over patent validity, so the Office should receive deference when its expert administrative judges have reassessed the validity of an issued patent and either confirmed or canceled it. Importantly, these reforms are realistic. The Supreme Court’s most recent decision on the standard of proof for patent invalidity in litigation, despite reaffirming the clear and convincing evidence standard, actually gives lower courts significant leeway to weaken the presumption of validity. As for the Patent Office, though a de novo standard of review remains on the books, recent Federal Circuit decisions are taking the first steps toward a more deferential approach by cautiously recognizing the fact-driven nature of many patent validity determinations
One Nation Subsidizing God: How the Implementation of the Paycheck Protection Program Revealed the Deteriorating Wall Between Church and State
Get PDFThe wall separating Church and State is at risk of collapse. The Religion Clauses of the United States Constitution act in tandem to en- sure that the freedom of religion is protected. Over the past three decades, however, the Supreme Court has steadily chipped away at the Establishment Clause while expanding the Free Exercise Clause. On the Establishment Clause side, the government used to be prohibited from providing monetary aid to religious organizations. Now, after the Court’s recent decision in Espinoza v. Montana Department of Revenue, the government may not exclude religious entities from public benefits even if those benefits may be used for religious activities. In other words, religious entities must be treated the same as secular entities. On the Free Exercise Clause side, however, religious entities are frequently exempted from generally applicable laws. In fact, after Tandon v. Newsom, government regulations may trigger strict scrutiny if religious exercise is treated less favorably than any comparable secular activity—that is, religious exercise may be treated better, but not worse than any comparable secular activity. Evidently, religion is special; it is treated equally when it comes to public benefits and given special treatment when laws burden it. While this specialness may be desirable, it has the potential to devolve into a preferred treatment regime when the Free Exercise Clause is given more weight than the Establishment Clause in funding cases. And, unfortunately, that is what happened when the Small Business Administration (SBA) implemented the Paycheck Protection Program (PPP) in 2020. In response to the COVID-19 pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which included the PPP. The PPP offered loans to small businesses and nonprofits that would be forgiven if spent primarily on payroll costs. Under the equal funding doctrine, religious entities ostensibly could not be denied PPP loans if they qualified for them. Yet, many religious entities that did not qualify for PPP loans ultimately received them because the SBA waived the affiliation limitations after finding that the rules burdened hierarchically structured religious organizations. So, not only were religious entities ostensibly eligible for loans thanks to the equal funding doctrine, but they also received preferential treatment thanks to an exemption. As a result, the Catholic Church received over $3 billion in PPP loans—making it the single largest beneficiary of the program—while secular nonprofits like Planned Parenthood were unable to receive PPP loans. This Note analyzes the Court’s new equal funding doctrine through the lens of the SBA’s faith-based organization exemption and highlights the doctrine’s propensity for devolving into a preferred treatment regime. In so doing, this Note outlines the history of the Court’s Establishment Clause jurisprudence in funding cases, the PPP and its faith-based organization exemption, and the dangers the equal funding doctrine poses to the Establishment Clause. Ultimately, this Note argues that the SBA’s faith-based organization exemption is un- constitutional and that the Court should uphold what is left of the Establishment Clause to ensure that any future exemptions in funding cases will suffer from the same constitutional defects