09 December 2016

Rural Living Is Less Healthy

One of the more notable bits of news in the wake of this election was that the largely urban part of America that voted for Hillary Clinton contributed twice as much to the economy as the largely rural part of America that voted for Donald Trump. In addition to being more economically productive, urban America is healthier than rural America. 

Interestingly, rather than being better off because they have lower taxes, taxes that are too low are one of many reasons that rural counties are less healthy, because they don't provide sufficient public services.
The 2016 County Health Rankings, released Wednesday, compare health disparities among nearly all the counties in the country on the basis of more than 30 factors, including education, housing, exercise and commuting time. The report shows dramatic differences between rural and urban counties on a number of measures, most notably premature death rates. 
Rural counties have higher rates of smoking, obesity, child poverty and teen births, as well as higher numbers of uninsured adults than their urban counterparts, according to the report, a collaboration between the Robert Wood Johnson Foundation and the University of Wisconsin Population Health Institute. Large urban counties have lower smoking and obesity rates, fewer injury deaths and more residents who attended some college. 
"What we think is going on here is that ... in rural areas, there is a smaller population, fewer businesses, fewer taxes -- and they're struggling to offer as many opportunities as urban," said lead researcher Bridget Catlin. "All of this has a significant impact on health." . . . 
"Urban residents definitely have better access to health care, but there's far more to good health than just that," said Catlin. "People have an impression of rural areas as healthy living and the great outdoors, but there aren't sidewalks. It can actually be more difficult to get out and exercise. Urban can offer more recreation facilities and more safe options." 
"Rural populations are also aging faster than urban areas," said Catlin. "Younger people who do go to college and leave home -- many of them don't return back home. What's left is an older population in the rural areas."
From CNN.

08 December 2016

Patent Law Tamed Yet Again

The United States Supreme Court made another major shift in patent law on Tuesday, overruling Federal Circuit precedents that had held that any design patent violation entitles the prevailing party to 100% of the profits from the product utilizing the patent, in the case of Samsung Electronics Co. v. Apple, Inc. According to the official syllabus of the decision (in the link above) the holding is that:
In the case of a multicomponent product, the relevant “article of manufacture” for arriving at a [35 U.S.C.] §289 damages award need not be the end product sold to the consumer but may be only a component of that product.
In the case, Samsung was ordered to pay $399 million to Apple for breaching design patent aspects of the iPhone that were a small component of the total product. The U.S. Supreme Court held in a unanimous opinion that damages for breach of a design patent should instead be proportionate to the contribution that the patented element makes to the total product - in this case, probably a small fraction of the total $399 million of profits that Samsung made from selling the infringing phones.

The decision resolves what had been a serious fundamental flaw in patent law that produced damages that were grossly disproportionate to the true value of the harm from an infringement. Under the old rule of law, it could easily be the case that the damages award for multiple breaches of different patents that all contribute to the same product could result in total damages far in excess of the total profits from the sales of the goods.

This is a particular barrier to technological innovations, because it is often not at all clear until a court finally resolves the issue, whether a product infringes a patent, and because there is no fool proof way to review the existing catalog of patents when designing a new product. Yet, a patent holder can recover for patent infringement even if the product is designed and/or invented completely independently of the patent holder's invention.

Also, a the patent holder can take a wait and see approach and only sue in cases where an allegedly infringing product becomes profitable, without bearing any of the downside risk, when potentially infringing products turn out to generate little or no profits.

This is one of an ongoing string of U.S. Supreme Court decisions that have generally narrowed the scope of what can be protected by patent law and the consequences for infringing a patent. Previous cases have, in particular, narrowed the scope of patentable business processes and software, made it easier to sanction weak patent infringement claims with attorneys' fee awards, narrowed the general presumption that injunctions are available for every patent infringement, and now, narrowed the scope of damages which can be awarded for an infringement that is a minor part of a product.

For a long time, the U.S. Supreme Court stayed away from patent law, which is a quite insular and technical speciality in the law, since circuit splits of authority never arose because all patent law cases are handled on appeal by the U.S. Court of Appeals for the Federal Circuit, a bench full of judges with private practice backgrounds in firms that enforced patents, resulting in a degree of institutional capture. But, the U.S. Supreme Court eventually got wise to this problem and has embarked on a slow but steady roll back of the Federal Circuit's patent law excesses.

Patent holders are now about 3 pro to 17 against to 4 neutral in U.S. Supreme Court litigation implicating patent law since 2005, a period which also included the America Invents Act in 2011 which was a major reform. There has also been related nationalization of trade secret law this year.

An important piece of patent legislation of venue for infringement actions has some change of passage either in the lame duck session or in the next Congress.

Other Relatively Recent Posts on Patent Law at this blog include:

* 15% of U.S. Tech Patent Litigation Due To Patent Troll Enforcement Of Three Dubious Patents

* Patents Are Much Harder To Get Than They Were A Dozen Years Ago

* Almost Half Of Fully Litigated Patents Are Invalid

* Fed Circuit Wrong Again On Patent Law

* The Law Against Using Your Own Ideas

* Tax Strategy Patents Are No More

Community Bail Funds

The framing of Community Bail Funds as "Bail Nullification" is in my view, counterproductive, but the practice itself is a fascinating end run around the failure of other policy makers to implement bail reform, which has been repeatedly demonstrated for half a century or so, to be an effective and workable criminal justice reform.
The longstanding scholarly debate over the ability of community members to engage in nullification has been confined to the study of jury nullification — when jurors acquit someone despite knowledge of their legal guilt. 
This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. 
This growing practice — what this Article calls “bail nullification” — is powerful because it exposes publicly what many within the system already know to be true: that although bail is ostensibly a regulatory pretrial procedure, for indigent defendants it often serves the function that a real trial might, producing guilty pleas and longer sentences when an individual cannot afford to pay their bail. 
By examining the ways in which community bail funds serve the functions that a nullifying jury might — allowing popular participation in an individual case to facilitate larger resistance to the policies and practices of state actors — this Article argues that community bail funds have the potential to change how local criminal justice systems operate on the ground, shifting and shaping political and constitutional understandings of the institution of money bail. 
Community bail funds give a voice to populations who rarely have a say in how criminal justice is administered, especially poor people of color. And the study of bail funds helps point toward other ways in which bottom-up public participation can help create a criminal justice system that is truly responsive to the communities that it is ultimately supposed to serve.
Jocelyn Simonson (Brooklyn Law School) has posted Bail Nullification (Michigan Law Review, Vol. 115, 2017, Forthcoming) on SSRN via the Legal Theory Blog.