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No License, No Problem – Is Qualcomm’s Ninth Circuit Antitrust Victory a Patent Exhaustion Defeat?
Get PDFThe Ninth Circuit’s recent decision in FTC v. Qualcomm (9th Cir., Aug. 11, 2020) is generally viewed as a resounding victory for Qualcomm. But in praising Qualcomm’s egalitarian approach toward rival chip makers, the Ninth Circuit points out that instead of granting licenses to these rivals, Qualcomm merely “declines to enforce its patents” against them “even though they practice Qualcomm’s patents”. As such, the Ninth Circuit states that Qualcomm’s “policy toward rival chipmakers could be characterized as ‘no license, no problem’”. Yet, from the standpoint of patent exhaustion, this approach could actually be a very big problem, not only for Qualcomm, but for all patent licensors seeking to extract revenue from the most lucrative point in the supply chain
U.S. Federal Genomic Data Release and Access Policies
Get PDFResearchers today have access to a vast aggregation of human and nonhuman genomic data, largely on an open access basis. According to the Joint Genome Institute’s Genomes OnLine Database (GOLD), data from more than 40,000 sequencing projects around the world, representing more than 375,000 different organisms, were publicly available to researchers as of July 2020. The availability of this tremendous public resource is due, in large part, to the data release policies developed a quarter century ago, toward the beginning of the Human Genome Project (HGP), which have been carried forward, in modified form, to the present. These policies impose requirements on both the generators of data (typically the sequencing centers and other laboratories conducting genetic experiments) and the users of that data (i.e., researchers who download and/or use it). This chapter, briefly outlines the history of such data release policies, particularly in the U.S. and with respect to human genomic data, and provides an overview of the obligations imposed on both data generators and data users
Professional Identity Formation Through Pro Bono Revealed Through Conversation Analysis
Get PDFLaw school is supposed to teach legal analysis and lawyering skills as well as mold law students’ professional identities. Pro Bono work provides an opportunity for law students to use their legal knowledge and skills and to develop their identities as emerging legal professionals. As important as both pro bono work and identity formation are, there has been very little research regarding how pro bono contributes to students’ identity formation. This paper utilizes a data set of over forty student-client consultations at a pro bono brief advice clinic that have been recorded and transcribed. It uses conversation analysis to study the approaches students take in presenting themselves to clients. These students are volunteers supervised by pro bono attorneys and are not enrolled in a clinic or class designed to teach lawyering skills or to explore professional ethics. As a result, their presentations of themselves are largely untutored portraits. The paper mines this rich data set to understand not only the inclinations of the students but also how law schools might best guide and assist students to reflect upon and develop their professional identities in the context of their clinic volunteering
Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois
Get PDFRecently bail reform issues have been in the news across the country, as concerns about fair treatment of defendants and possible public safety risks from expanding pretrial release have collided. These issues involve important empirical questions, including whether releasing more defendants before trial leads to additional crimes. An opportunity to investigate this public safety issue has developed in Chicago, our nation’s third largest city. There, the Office of the Chief Judge of the Cook County Courts adopted new bail reform measures in September 2017 and reviewed them empirically in May 2019. Cook County’s Bail Reform Study concluded that the new procedures had released many more defendants before trial without any concomitant increase in crime. This article disputes the Study’s conclusions. This article explains that, contrary to the Study’s assertions, the new changes to pretrial release procedures appear to have led to a substantial increase in crimes committed by pretrial releasees in Cook County. Properly measured and estimated, after more generous release procedures were put in place, the number of released defendants charged with committing new crimes increased by 45%. And, more concerning, the number of pretrial releasees charged with committing new violent crimes increased by an estimated 33%. In addition, as reported by the Chicago Tribune, the Study’s data appears to undercount the number of releasees charged with new violent crimes; and a substantial number of aggravated domestic violence prosecutions prosecutors dropped after the changes, presumably because batterers were able to more frequently obtain release and intimidate their victims into not pursuing charges. These public safety concerns call into question whether the bail “reform” measures implemented in Cook County were cost-beneficial. And because Cook County’s procedures are state-of-the-art and track those being implemented in many parts of the country, Cook County’s experience suggests that other jurisdictions may similarly be suffering increases in crime due to bail reform
George Perkins Marsh: Anticipating the Anthropocene
Get PDFThis chapter, part of the forthcoming volume PIONEERS OF ENVIRONMENTAL LAW, explores the vision of humanity\u27s influence on social-ecological systems that George Perkins Marsh provided to the world in his 1964 work, MAN AND NATURE, OR PHYSICAL GEOGRAPHY AS MODIFIED BY HUMAN ACTION, republished in 1874 as THE EARTH AS MODIFIED THROUGH HUMAN ACTION. In addition to tracing how Marsh and these publications influenced nature resources and environmental law in the United States well into the 20th century, this chapter also argues that Marsh anticipated, in many respects, the environmental legal and policy issues of the Anthropocene by tracing clearly how human development can substantially alter ecological processes at a large geographic scale
Money Talks: Using Prior Salary as an Affirmative Defense in Equal Pay Claims
Get PDFThe wage gap is alive and well, with women on average making 82 cents for every dollar a man makes. Moreover, the wage gap has stagnated, with no significant progress being made to close the gap for the past ten years. In light of this stagnation, it is important to review current practices and consider steps that could be taken in order to catalyze a modern effort at closing the wage gap. One commonplace business practice that should be addressed is an employer’s use of an employee’s prior salary to determine starting pay. Courts are divided as to whether employers can or should be allowed, under the Equal Pay Act of 1963, to rely on an employee’s past salary to excuse any resulting wage differential between employees of the opposite sex performing substantially similar work.
This Note argues that, within the context of the Equal Pay Act, employers should not be able to excuse a wage gap by using an employee’s prior salary. This Note proceeds by examining the history and current context of the Equal Pay Act of 1963, as well as the disparate court responses concerning whether employers can use their considerations of an employee’s prior salary to defend a resulting wage gap. This Note finds that, while prior salary may appear to be an objective measure that helps facilitate setting current wages, prior salary is ultimately some thirdparty’s determination of a person’s worth. Prior salary is a shadowy concept and it is extraordinarily difficult, if not outright impossible, to discern what factors may have been used in setting it and whether that determination was at all prejudicial. Therefore, this Note ultimately urges courts and legislatures to recognize that prior salary should not be used to excuse a wage gap. People’s livelihoods are at risk and it is important that the question of whether prior salary should continue to be considered and used as a defense by employers be resolved
Media Literacy Beyond the National Security Frame
Get PDFThe Trump administration’s delegitimizing refrain characterizing legacy media as “fake news” institutions has doubtless exacerbated growing public distrust in government and accountability institutions. It has also promoted arrogation of power by the Executive. Media literacy must be broadened to encompass the more capacious goal of helping citizens understand the structure, operations, and structural role in democracy, and the interconnected ways in which it is threatened. Expanding the public’s understanding of the proper role of the press and the ways in which modern information industries operate attention markets, promoting the audience’s awareness of its own cognitive blind spots, increasing reporters’ critical acumen when dealing with information, and reframing newsworthiness norms and awareness of disinformation techniques in order to lessen the mainstream press’s vulnerability to informational manipulation can all be positive expansions of the notion of media literacy beyond the ability to spot factual errors in particular articles
Chapter 2: Western Public Land Law and the Evolving Management Landscape
Get PDFOur nation’s history, and the history of the lands that we inhabit, are inextricably intertwined. Ranchers, miners, loggers, and intrepid homesteaders of the Old West embodies manifest destiny era ideals that set our nation on a trajectory which continues to shape the choices we make today. Laws enacted to speed westward expansion and resolve land ownership indelibly marked the Western landscape, where the vast majority of our public lands are found today.
The US government acquired the Western frontier with federal blood and treasure, and then enacted laws conveying much of that landscape to states, railroads, and the indomitable men and women who personified Old West ideals. The laws that transferred millions of acres of land out of federal ownership, and that retained other lands as part of our nation’s treasured landscapes, also created property rights and expectations that provide important sideboards on our transition to a New West. Some of those laws remain in force, supplemented by new laws protecting wildlife, wild places, and the public’s voice in public land management. Our public land mangers face a difficult task in finding the balance required by a complex legal framework, and communities that grew up around Old West imperatives sometimes struggle to adapt to New West values.
Understanding the role public lands have played in American history helps explain who we are today. This understanding illuminates the tensions underpinning disputes like the takeover of the Malheur National Wildlife Refuge and state efforts to wrest control of our public lands from the federal government. Lurking behind these battles are long simmering questions over the values we seek from our public lands. As past is prelude, we must understand where we came from as we strive to chart a course defining a Next West
Digital Services Tax: A Cross-Border Variation of the Consumption Tax Debate
Get PDFThe rise of highly digitalized businesses, such as Google and Amazon, has strained the traditional income tax rules on nexus and profit allocation. Traditionally, profit is allocated to market countries where consumers are located only if the business has physical presence. However, in the digital economy, profits can be easily generated in market countries without a physical presence, resulting in tax revenue loss for market countries. In response, market countries have started imposing a new tax, called the digital services tax (“DST”), on certain digital business models, which has ignited heated debate across the globe. Supporters defend the DST, designed as a turnover style consumption tax, as an effective measure to make up the foregone revenue in the digital economy because it is not bound by the traditional rules of income taxation. Opponents criticize DST as “ring-fencing” or segregating certain digital business models, discriminating against American tech giants, and arguably imposing a disguised income tax. The debate has been focused on the imminent impact, such as who is the immediate winner and loser, but the discussion lacks efforts to understand the fundamentals of DST, especially with regard to the consumption tax aspect.This Article is the first academic paper that highlights DST as a consumption tax and provides normative implications for policy makers deliberating a DST. It argues that a DST, with certain modifications, can be a good solution for the tax challenges of the digital economy. First, the Article offers an in-depth analysis of DST’s economic impact in multi-sided digital platforms. Second, it offers the advantages of DST over other types of consumption tax, such as value added tax and destination-based cash flow tax. Finally, it illustrates how the recent Supreme Court case of South Dakota v. Wayfair, Inc., which discusses sales tax imposed on certain remote sellers, and the subsequent Netflix Tax, may shed light on ways to overcome the ring-fencing problem of the DST
Protecting Crime Victims in State Constitutions: The Example of the New Marsy\u27s Law For Florida
Get PDFA majority of states have adopted state constitutional amendments protecting crime victims’ rights. Most of those amendments were adopted long ago and many fail to comprehensively address crime victims’ interests. In response to these shortcomings, the nation is seeing a new wave of state constitutional amendments protecting crime victims’ rights. Among these states is Florida, where in November 2018 Florida voters approved significantly expanded protections for crime victims in Florida’s Constitution—“Marsy’s Law for Florida.”This Article explains in detail how Marsy’s Law for Florida provides important new protections for crime victims in the Florida criminal justice process. The Article begins by providing a brief overview of the crime victims’ rights movement in this country. It then turns to the specific crime victims’ rights added by the new Florida Amendment, describing why each of these rights is an important addition to Florida’s Constitution (and other similar constitutional amendments in other states). The Article concludes by reviewing broader lessons to be learned from Florida’s new enactment, contending that Florida’s recent experience may be useful for other states considering expanding their state constitutional protections and may ultimately set the stage for a federal constitutional debate about protecting crime victims’ rights