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Aggregated Royalties for Top-Down FRAND Determinations: Revisiting Joint Negotiation
Get PDFIn an environment in which widely-adopted technical standards may each be covered by large numbers of patents, there have been increasing calls for courts to determine “fair, reasonable and non-discriminatory” (FRAND) royalties payable to holders of standardsessential patents (SEPs) using “top-down” methodologies. Top-down royalty approaches begin with the aggregate royalty that should be payable with respect to all SEPs covering a particular standard, and then allocate a portion of the total to individual SEPs. Top-down approaches avoid many drawbacks associated with bottom-up approaches in which royalties for individual SEPs are assessed, often in an inconsistent and piecemeal manner, without regard for the other SEPs that cover the standard. Yet despite the potential benefits of top-down methodologies, one of the most promising means for determining aggregate royalty levels – joint agreement by the members of the relevant standards-development organization (SDO) – has gained little traction. The idea of SDO participants jointly negotiating FRAND royalties attracted the attention of commentators and antitrust agencies about a decade ago, when a handful of SDOs began to explore mandatory ex ante rate disclosure requirements. But few SDOs adopted such policies, and joint negotiations were never incorporated into the mainstream standardization process. One of the principal reason that SDOs have been hesitant to endorse joint royalty negotiations is the perceived risk of antitrust liability arising from concerted action among competitors. But as numerous commentators and antitrust officials have reiterated, this fear is largely misplaced in the context of industry standard-setting. Thus, SDOs should follow the lead of patent pools and begin more actively to determine aggregate patent royalty burdens for standards that they develop. In addition, antitrust and competition authorities should assure the market that collective agreement on aggregate royalty rates alone should not give rise to antitrust liability
Addressing Utah’s School to Prison Pipeline
Get PDFUtah’s STTP problem needs to be resolved. Zero tolerance policies, the limited constitutional rights of students, the police power of school administrators, the injection of SROs into our schools without clear job responsibilities and training, and the imbalance of power between students and state actors all contribute to Utah’s biased STPP. To address the STPP, researchers encourage: the expansion of legal protections for juveniles; the re-training of SROs and employment contracts that clearly define SROs’ responsibilities; the use of restorative justice practices and other evidence-based alternatives to the juvenile justice system; and reforming the discretionary power of state actors to cite, refer, and sentence youth within the juvenile justice system
The Significance of Injustice for Bioethics
Get PDFIn my judgment, applied ethics is ineluctably non-ideal and partial compliance theory. It’s ethics in the context of unjust institutions and conduct. Theorizing or teaching about concepts such as autonomy in abstraction from this recognition is misleading. Instead, questions such as how to realize autonomy should be framed in the context of incomplete justice. There’s much to be learned from the past nearly 50 years of discussions of justice to help with this enterprise, but they are too little known or discussed in much contemporary bioethics
Accountability and Decision Making in Autonomous Warfare: Who is Responsible?
Get PDFThis Article addresses the use of autonomous weapons systems (“AWS”). This Article only concerns itself with AWS used for offensive purposes. That is distinct from defensive weapons systems, including Israel’s Iron Dome and U.S. missile defense systems. Similarly, this Article does not address use of AWS for purposes of neutralizing Improvised Explosive Devices (“IED”) or evacuating a wounded soldier. The use of AWS potentially minimizes risks to soldiers—at least in the short term. It suggests sleek technology. The dead are a hazy visual on a screen. It is antiseptic, as neither the smell of burning flesh nor the sound of agony can be heard by those programming the AWS or those sitting behind a screen observing the effects of a “hit.” Autonomous warfare has also been positively portrayed in Hollywood movies; technological sophistication inherently possesses an undeniable “cool” factor that is engaging, engrossing, and compelling. However, the positive lens with which it is viewed through Hollywood is a limited glimpse of its role. Weapons created for the purpose of autonomously determining whenthe nation-state can kill a human being raises profoundly important questions regarding humanity, ethics, and defense. While the use of force by the nation-state is regulated, whether by international law or rules of engagement, the introduction of AWS challenges the notion of whether— and at what point—proposed decision making should be removed from human control and judgment
Making Sense of the Rapidly Evolving Legal Landscape of Solar Energy Support Regimes
Get PDFChange defines the solar industry today. Photovoltaic (PV) panels have become far more prevalent globally; prices have fallen precipitously; and the rise of solar is causing shock waves throughout the electricity sector, with advocates pushing for “grid parity” and incumbents fearing a utility “death spiral.” Much attention has been paid to these shifts. Much less focus has been put on the dramatic changes now taking place in the legal instruments used to promote solar power. These changes are just as critical — and are intrinsically intertwined with — the evolution of the solar energy industry itself. As one set of commentators has observed, we may now be observing the “emergence of the next generation of renewable electricity policies.” This Article aims to make sense of the myriad changes in solar energy support policies worldwide. It identifies the four primary mechanisms used to promote solar to date and traces the key changes that these laws are rapidly undergoing. In so doing, the Article offers a critical roadmap for understanding the recent past of solar support laws, and their potential future. Specifically, the Article observes that the rapid changes to solar support mechanisms derive directly from a fundamental tension at the center of how these laws interface with the electricity system, and that because of this tension, the recent changes to these laws are likely only to continue. Three case studies — of Germany, Japan, and Nevada—are used to highlight the broader lessons the Article offers
The Changing View of the “Bystander” in Holocaust Scholarship: Historical, Ethical, and Political Implications
Get PDFThe role of “bystanders” has been a central theme in discussions about the ethical legacy of the Holocaust. In early Holocaust historiography, “bystander” was often used as a generalized catchall term designating passivity toward Nazi crimes. “Bystander behavior” became synonymous with passivity to the plight of others, including the failure to speak out against injustice and/or assist its victims. More recent scholarship has documented the extent to which local populations and institutions were actively complicit in Nazi crimes, participating in and benefitting from the persecution of Jewish citizens, not only in Germany but across Europe. This newer research has sparked a debate about the very use of the term “bystander” and the concomitant assumptions about passivity. The historiographical shift has also altered ethical interpretations about the role of “bystanders” in a way that has broader implications for contemporary discussions about analogous situations. Traditionally, ethical behavior has been understood and addressed as an individual phenomenon, yet the Holocaust and other cases of genocide represent collective forms of violence and victimization, raising complex questions about the links between individual responsibility and collective behavior. The political and ethical implications of the role of “bystanders” remain as complex as they were in the immediate wake of the Holocaust
Considering Citizenship Taxation : In Defense of FATCA
Get PDFInspired by Ruth Mason’s recent article, Citizenship Taxation, which reaches a general conclusion against citizenship taxation, this Article also questions citizen taxation under the same normative framework, but with a particular focus on efficiency and administrability, and takes a much less critical stance towards the merits of citizenship taxation. First, neither citizenship taxation nor residence-based taxation can completely account for the differences between residents’ and nonresidents’ ability to pay taxes under the fairness argument. Second, the efficiency argument, that citizenship taxation may distort both Americans’ and non-Americans’ citizenship decisions, is not convincing. The American citizenship renunciation rate is not particularly serious compared to other countries, and it is U.S. immigration law, not U.S. tax law, that should be blamed for obstructing highly skilled and educated immigrants. Third, despite enforcement difficulties abroad under the administrative argument, determining residence by considering all facts and circumstances in residence-based taxation would be worse than the bright-line citizenship criterion in citizenship taxation.After discussing the competing normative arguments on citizenship taxation, this Article aims to defend the administrability of citizenship taxation in conjunction with new reporting obligations. Individual taxpayers’ obligations to file Foreign Bank Account Reports (FBAR) or report under the Foreign Account Tax Compliance Act (FATCA) are not seriously onerous. The fact that citizenship taxation along with FBAR and FATCA enhances global transparency further supports the case for citizenship taxation
Medical Futility and Religious Free Exercise
Get PDFA tragic scenario has become all too common in hospitals across the United States. Dying patients pray for medical miracles when their physicians think that continuing treatment would render no meaningful benefit. This situation is unfortunately referred to as “medical futility.” In these cases, physicians, who are less likely than their patients to rely on God as a means of coping with major illness, are at an impasse. Their patients request everything be done so that they can have more time for God to intervene, but in the physician’s professional experience, everything will probably do nothing. What is the physician to do? The conundrum is a modern one: medical technologies such as breathing machines and dialysis units can support human bodies almost indefinitely when many of our organs fail. But is there any limit on this technological imperative? Every state and the U.S. Constitution recognize that a patient has the legal right to refuse unwanted treatment, even if it is life-sustaining. However, there is no corresponding constitutional right to demand specific treatments. Further, most states have passed so-called “medical futility statutes.” These statutes make it explicit that physicians have immunity from negligence claims if a physician refuses to offer futile treatment, so long as particular statutory safeguards are met. Even if there is no general legal entitlement to medical care and physicians may be immunized from negligence claims, can the invocation of a state’s medical futility statute violate free exercise under state RFRAs, or the U.S. Constitution? This is the question I address in this article
Frontiers in Precision Medicine II: Cancer, Big Data and the Public
Get PDFPrecision medicine is being developed within a complex landscape of public policy, science, economics, law, and regulation. In these and other policy areas, the goal of developing individually-tailored therapies poses novel challenges for health care research, delivery and policy. In this symposium, a range of experts in genetics, medicine, bioinformatics, intellectual property, health economics and bioethics identified and discussed many of the pressing questions raised by the development and practice of precision medicine. These and other issues will need to be taken into account as precision medicine moves ahead and becomes the standard of medical practice and care in the United States and around the world
The Control of Air Pollution on Indian Reservations
Get PDFEnvironmental law applicable to Indian lands is similar to the laws applicable throughout the nation, but with significant differences. States play a very limited role in regulating sources of emissions in Indian lands. The EPA has the major responsibility for controlling air pollution, but its efforts to date are inadequate. The CAA gives tribes the power to regulate air pollution, but only a few tribes, such as the Navajo Nation, have the resources to utilize this power. Voluminous federal regulations are aimed primarily at new sources, while existing sources have much less oversight, although this may be changing. The inability of the federal and state governments to effectively aggregate oil and gas operations in order to impose major source requirements has left important sources of rural air pollution to be minimally regulated. The new and pending regulations as well as the potential designation of lands used for oil and gas production as nonattainment areas may bring needed controls. But trying to effectively regulate an industry suffering from effects of low energy prices will be a challenge