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Duty of Candor in the Digital Age: The Need for Heightened Judicial Supervision of Stingray Searches
Get PDFThis Note explores the constitutional implications of the use of a device known as the “Stingray” in criminal investigations. This device masquerades as a cell phone tower and forces all cell phones within a considerable range to connect to it, transmitting data and allowing law enforcement to ascertain the location of each cell phone. The use of Stingrays raises important Fourth Amendment concerns that have been brought to light most significantly by the 2008 federal prosecution of Daniel Rigmaiden. This Note argues that Stingray use constitutes a Fourth Amendment search and that a new standard of warrant requirements is needed to effectively allow the judiciary to supervise the government’s use of the device
The 21st Century Fight Over Who Sets the Terms of the Charity Property Tax Exemption
No full textTurning from the substantive issue of defining charity, this article considers the “who” question by examining the roles of the courts, legislatures, municipalities, and charities in determining exemption and payments in lieu of taxes. The three covered topics – constitutional power, statutory interpretation, and the “intermediate sanctions” of user fees and PILOTs – braid together to form the procedural framework for the financial relationship between nonprofit property owners and the taxing jurisdictions that host them. Change the parameters of one, and you change the others. Staying off the rolls or minimizing the tax bite often results from compromise – whether at the state constitutional level; in state statutes; as a matter of assessment; or through negotiation with local governmental bodies. But such an application of a multi-level framework for mischief leads to legal incoherence. The article begins with the knockdown, drag-out separation-of-powers fight that has arisen in Illinois and Pennsylvania: Which branch, the judicial or legislative, defines “charities” granted exemption by the state constitution? Next up is the more mundane world of statutory interpretation, where even here courts second-guess the legislature. A June 2015 decision by the New Jersey tax court exemplifies what could be view as “passive-aggressive separation of powers,” when the court basically says, “Surely the legislature could not have meant this entity (or this use of property) to qualify as charity.” This latest decision not only seems to render all “sophisticated centers of medical care” in New Jersey taxable, but also is causing sleepless nights for Princeton University: The same judge is hearing a challenge to the university’s exemption brought by local taxpayers. New Jersey’s January 2016 proposed legislation fell a pocket veto short of enactment: It would have imposed a formulary community-service fee on nonprofit hospitals. Legislative efforts are again underway. Perhaps such a third-way solution might become more common. Voluntary agreements for payments in lieu of taxes are literally all over the map, from Boston’s revamped comprehensive PILOT program to a Florida appellate court’s striking of a PILOT program as inconsistent with statutory exemption. Will the people’s branch get the last word after all
Reviving the Environmental Justice Agenda
Get PDFDuring his 2008 campaign, President Obama pledged that his administration would put an emphasis on environmental justice, outlining a strategy to address the unequal burden of pollution in low-income, minority and indigenous communities. Though many criticize some of the shortcomings, such as inadequate pursuit of civil rights remedies, the administration has followed through to supply some of the most critical components of solutions to the environmental justice challenge: leadership, capacity, collaboration-in-fact, and funding. This article will examine the reinvigorated Inter-Agency Working Group on Environmental Justice, the roadmaps prepared to address EJ, and significant rules and guidance enacted by the EPA furthering the EJ mission. The paradoxical relationship between overburdened communities and the industries that both nourish and poison them demands more vigilant attention to local conditions atypically addressed at the federal level. The administration’s actions illustrate the importance of the federal role in alleviating unequal environmental burdens
Causation in Cases of Evidential Uncertainty: Juridical Techniques and Fundamental Issues
Get PDFThis paper reviews from a comparative legal perspective the range of juridical techniques that have been developed in different legal systems to address perceived problems of uncertain alternative causation. It finds that the process of development has generally proceeded in an ad hoc and unprincipled fashion, without regard for overall coherence. It argues for a more principled legal approach in which the appropriate legal response (full liability, proportional liability or no liability) is adopted on the basis of a ranking of the different categories of cases in which problems of causal uncertainty can arise, reflecting the strength (or weakness) of the arguments in favor of the imposition of (at least some) liability
FRAND Market Failure: IPXI’s Standards-Essential Patent License Exchange
Get PDFThis case study pertains to Intellectual Property Exchange International, Inc. (IPXI), which was formed in 2008 to create a market-based trading exchange for aggregated patent license rights, particularly standards-essential patents (SEPs). IPXI based its model on existing commodities exchanges, proposing that non-exclusive patent licenses could be standardized, commoditized, and traded on an open market, thus eliminating costly and inefficient bilateral negotiations and providing a royalty rate likely to be viewed as “reasonable”. IPXI’s most ambitious offering involved a portfolio of 194 U.S., European and other patents deemed essential to IEEE’s 802.11n “Wi-Fi” standard. IPXI offered up to 50,000 tradable Unit License Right contracts (ULRs), each granting the holder a worldwide right to manufacture and sell 1,000 compliant devices. Despite the backing of several significant patent holders, IPXI’s offering failed to attract sufficient interest, and IPXI ceased operations in March 2015. This paper analyzes the failure of IPXI based on the documentary record, public statements by IPXI executives and interviews with industry experts. It concludes that, despite its potential to improve the efficiency of the SEP licensing market, factors including a lack of participation by key patent holders, an untested record of enforcing patents against infringers, and constraints imposed by the standardized ULR, led to IPXI’s demise
In Defense of Patent Trolls: Patent Assertion Entities as Commercial Litigation Funders
Get PDFThis paper is the first to defend and commend the role of patent trolls in litigation. It argues that trolls either are not the sole source of patent litigation ills or are not responsible for these ills in the first place. Next, it demonstrates that trolls provide the same litigation-related benefits as commercial litigation funders, which also finance patent lawsuits. Troll commentators have ignored these benefits, for which funders are praised, in the evaluation of trolls. Finally, this paper explains that eliminating trolls will not only close off a source of these benefits but also worsen problems by shifting trolling behavior to practicing entities and increasing investment in funders. In sum, though patent litigation is plagued with problems, targeting troll plaintiffs in reform efforts is not the answer to solving them