2017, Vol. 111, No. 2
We began this project pondering a riddle. Most state governments have adopted what we—and many others—view as clearly suboptimal tax policies, especially in regard to the taxation of corporate income and capital gains. Yet, with the notable exception of those who oppose progressivity and the taxation of capital, state-level tax policymakers have had remarkably little appetite for reform. This Article provides one major explanation for this riddle by identifying and demonstrating a phenomenon that we label as “tax cannibalization.” We argue that flawed state-level tax policies derive in part from perverse incentives inadvertently created by the federal government.
Patents and trade secrets are often considered economic substitutes. Under this view, inventors can decide either to maintain an invention as a trade secret or to seek a patent and disclose to the public the details of the invention. However, a handful of scholars have recognized that because the patent disclosure requirements are not always rigorous, inventors may sometimes be able to keep certain aspects of an invention secret, yet still receive a patent to the invention as a whole. Here, we provide further insight into how trade secrets and patents may act as complements. Specifically, we introduce the concept of “data-generating patents,” which refer to patents on inventions involving technologies that by design generate valuable data through their operation or use. For instance, genetic tests and medical devices produce data about patients. Internet search engines and social networking websites generate data about the interests of consumers. When data-generating inventions are patented, and the patentee enjoys market power over the invention, by implication, the patentee also effectively enjoys market power over the data generated by the invention. Trade secret law further protects the patentee’s market power over the data, even where that data is in a market distinct from the patented invention and especially after the patent expires or is invalidated. We contend that the use of patents and trade secrets as complements in this manner may sometimes yield socially harmful results. We identify the conditions under which such results occur and make several recommendations to mitigate their effects.
Notes & Comments
Raped Abroad: Extraterritorial Application of Title IX for American University Students Sexually Assaulted While Studying Abroad
Female college students who study abroad are five times more likely to be raped than their counterparts who remain on their domestic campuses. Students raped or sexually assaulted on or around campuses in the United States can seek a remedy under Title IX, which provides administrative and judicial remedies. Very few federal cases have ever addressed whether Title IX applies extraterritorially to allegations of sex discrimination occurring abroad, and courts have reached different results in these cases. Moreover, no federal circuit has ever addressed the issue. This Note explores whether Title IX applies extraterritorially to students raped while studying abroad. After concluding that the text of the statute fails to overcome the presumption against extraterritorial application, this Note analyzes whether Congress should amend Title IX to explicitly overcome this presumption, concluding that it should not. Instead, this Note presents alternative solutions for preventing and responding to sexual violence during study abroad programs, such as federal disclosure legislation and an amendment to the Clery Act that mandates reporting of crimes that occur during study abroad programs.
A new, “supercharged” form of IPO has slowly developed over the last twenty years. This new form of IPO takes advantage of several seemingly unrelated provisions of the tax code to multiply pre-IPO owners’ proceeds from a public offering without reducing the amount public investors are willing to pay for the stock. Supercharged IPOs use a tax receivable agreement to transfer tax assets created by the IPO back to the pre-IPO ownership, “monetizing” the tax assets. As these structures have become more efficient, commentators have expressed concerns that these agreements deceive shareholders who either ignore or do not understand the agreements’ implications. This Note argues that tax receivable agreements are actually similar to other popular forms of monetizing tax assets. Further, this Note shows that tax receivable agreements permit parties to compensate each other for the value of tax assets, increase efficiency in the market, and encourage risk-taking.
In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.
This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the habeas statute is unconstitutional.