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Articles 1 - 30 of 42
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Sampled! Revisiting Fair Use And De Minimus Copying In Music Sampling, Connie Davis Nichols
Sampled! Revisiting Fair Use And De Minimus Copying In Music Sampling, Connie Davis Nichols
The Business, Entrepreneurship & Tax Law Review
Could your favorite mash-up be an infringement under Copyright law? At one time, sound recordings featured a simplified copyright infringement analysis under the 2005 Bridgeport Music decision, which held that the Copyright Act provided copyright holders an exclusive right to sample their own work and any other sampling constituted infringement, unless it was a fair use. This decision remained intact until the VMG decision in 2016, which renewed the availability of the de minimis infringement defense in music sampling cases and held that sampling without a license did not constitute infringement so long as the sample was not recognizable by …
Unreasonable Royalty: Realigning Economic Incentives Involving Innovation In The Age Of Patent Assertion Entities, Jordan Duenckel
Unreasonable Royalty: Realigning Economic Incentives Involving Innovation In The Age Of Patent Assertion Entities, Jordan Duenckel
The Business, Entrepreneurship & Tax Law Review
Patent litigation is a high-stakes endeavor when jury verdicts can be in the hundreds of millions or even billions. With this much at stake, the judicial system is ripe for abuse by parties that aren’t inventors or producers: nonpracticing entities. Various steps have been taken to mitigate or discourage the gaming of the system but have not been successful for various reasons. This Article proposes the novel solution of incorporating a federal damages cap into 35 U.S.C. § 284 to shift the underlying economic incentives toward innovation. After discussing some likely challenges to the proposal, this Article concludes that the …
Biotech Patent Eligibility: Why We Care About Conventionality, Michael J. Moedritzer
Biotech Patent Eligibility: Why We Care About Conventionality, Michael J. Moedritzer
The Business, Entrepreneurship & Tax Law Review
While the cfDNA advancements of CareDx hold significant promise and life saving potential in the field of molecular diagnostics, the Federal Circuit’s decision in CareDx, Inc. v. Natera, Inc. to invalidate the patent was justifiable. The court correctly held that these inventions were directed to a natural phenomena and combined conventional techniques. The foundation of the patent system does not motivate these federally funded academic innovations and risk unwarranted high healthcare costs. With the recent White House mandate requiring tax payer funded research to be publicly available, there is also less risk for the use of trade secrets in these …
Can A Homeowner Benefit Agreement Run With The Land To Bind Successors?, Maxwell Rubin
Can A Homeowner Benefit Agreement Run With The Land To Bind Successors?, Maxwell Rubin
The Business, Entrepreneurship & Tax Law Review
Laws governing the enforceability of brokerage contracts are largely uniform and provide stable outcomes in the event of broker or client breach. Brokerage contracts reflect a hybrid of property and contract law principles that work to provide predictable
Buried Hope: Assessing The Future Of Carbon Sequestration In The U.S. Under The Updated 45q Tax Credit, Alden Smith
Buried Hope: Assessing The Future Of Carbon Sequestration In The U.S. Under The Updated 45q Tax Credit, Alden Smith
The Business, Entrepreneurship & Tax Law Review
The urgent need to combat climate change has prompted governments world-wide to explore innovative policy measures to reduce greenhouse gas emissions. One such measure is the process of carbon capture and sequestration in which carbon dioxide is captured either directly from the atmosphere or prior to its release. This article will analyze updates to the 45Q tax credit passed in the Inflation Reduction Act of 2022, in which Congress increased tax incentives for industries that use carbon capture technology. This analysis will explain carbon capture technology, survey use of the technology, and discuss the viability of the latest updates to …
Cross-Border Data Transfers: A Balancing Act Through Federal Law, Joshua M. Wilson
Cross-Border Data Transfers: A Balancing Act Through Federal Law, Joshua M. Wilson
The Business, Entrepreneurship & Tax Law Review
Throughout the digital age, corporations have collected, used, and stored individuals’ digital information to efficiently market to consumers and expand their business. In fact, not only do retail companies rely on data, but also farmers, financial institutions, health services, and other businesses heavily depend on one’s in-formation. Despite the importance and necessity of data, the U.S. has failed to establish a comprehensive federal law addressing data issues. Many countries with developed or developing economies, however, have established laws related to data, a company’s usage of such data, and other data-related issues. A key obstacle plaguing U.S. businesses in terms of …
Proposition 12 And A New Paradigm For Federal Law: Toward More Humane And Ethical Farm Animal Practices In California And The U.S., Valerie J. Watnick
Proposition 12 And A New Paradigm For Federal Law: Toward More Humane And Ethical Farm Animal Practices In California And The U.S., Valerie J. Watnick
The Business, Entrepreneurship & Tax Law Review
This paper explores California’s Proposition 12, a ballot measure designed to im-prove factory farmed animal welfare and marginally, the conditions for those who work on such farms. The Proposition bans cruelty in farm animal confinement within California and calls for specific space requirements. Proposition 12 also re-quires that animals raised outside the state and sold within the state comply with the more humane housing standards in the law. Based on a recent ruling upholding Proposition 12 by the U.S. Court of Appeals for the Ninth Circuit and the introduction of multiple other state laws banning the most inhumane practices in …
The Ultimate Congressional Workaround: Why Businesses Should Advocate The Return Of A Robust And Originalist Nondelegation Doctrine After Nfib V. Osha And Biden V. Missouri, Tyler A. Dodd
The Business, Entrepreneurship & Tax Law Review
At the height of the COVID-19 pandemic, the Biden administration looked for a way to stop the spread of the virus. To stop the spread, the Biden administration announced a COVID-19 vaccine mandate for all businesses with over 100 employees and for all healthcare facilities receiving funds from the Center for Medicare and Medicaid Services (“CMS”). OSHA and CMS would administer the mandates, respectively. The agencies needed to administer the vaccine mandate because Congress failed to enact a mandate, and the agencies had broad and indefinite regulatory power in enacting public health measures. In NFIB v. OSHA the United States …
Farm And Food Policies For A Sustainable Future, John Ikerd
Farm And Food Policies For A Sustainable Future, John Ikerd
The Business, Entrepreneurship & Tax Law Review
United States government policies have incentivized and supported the unsustainable agri-food system of the present and fundamental changes in farm and food policies will be necessary for a sustainable future. US farm policies, initiated in the 1930s, were designed to ensure long run domestic food security by ensuring the economic viability of independent family farms. New mechanical, chemical, and biological technologies of the 1950s made it possible to increase agricultural productivity by applying industrial production strategies to farming. A shift in farm policy during the 1960s made the shift from family farms to industrial agriculture inevitable.
Should The Great Food Transformation Be Fake-Meat Free? Considering Strategies For A Future Of Food That Is Kinder To People, Animals, And The Planet, Iselin Gambert
The Business, Entrepreneurship & Tax Law Review
In 2019, former Trump White House adviser Sebastian Gorka infamously denounced advocates of the Green New Deal with the pithy admonishment, “They want to take away your hamburgers.” This rhetoric is ironic given that none of the politicians supporting the Deal have suggested widescale adoption of vegan diets, much less any laws or policies restricting the consumption of animal-based meat. However, given our species’ broken relationship to food, perhaps they should. The 2019 EAT-Lancet Commission Food in the Anthropocene report laid bare the scope of our current global predicament, warning that “[g]lobal food production threatens climate stability and ecosystem resilience …
Genetically Engineered Food, Food Security, And Climate Change, Joanna K. Sax
Genetically Engineered Food, Food Security, And Climate Change, Joanna K. Sax
The Business, Entrepreneurship & Tax Law Review
Malnutrition is the leading cause of death and disease worldwide. Climate change is an existential crisis. We need to feed people and address the role of agriculture in climate change – at the same time. This is problematic, as agriculture inherently creates issues that contributes to climate change. Utilizing science, through genetically engineered crops, is one way to close the harm gap between food security and climate change. This essay addresses the controversial issue of genetically engineered crops with the complicated issues of food security and cli-mate change by analyzing three main issues: (1) how the science of genetically engineered …
Creating Sustainable Food Systems With Trademarks And Technology, Agnes Beatrice Gambill
Creating Sustainable Food Systems With Trademarks And Technology, Agnes Beatrice Gambill
The Business, Entrepreneurship & Tax Law Review
A geographical indication (GI) is a type of trademark that conveys the geographical origin and unique characteristics of a specialty product. Well-known examples of geographical indications include Champagne and Roquefort cheese. Numerous case studies from across the globe underscore the benefits that geographical indications can contribute to rural regions, such as increased job production, repopulation of rural areas, visibility, and renewed local pride. An international treaty called the Geneva Act grants intellectual property protection for geographical indications on a worldwide basis. Notably, the U.S. is not a party to this treaty and takes a hostile stance towards the use of …
Fda-Approved: How Pfas-Laden Food Contact Materials Are Poisoning Consumers And What To Do About It, Katya S. Cronin
Fda-Approved: How Pfas-Laden Food Contact Materials Are Poisoning Consumers And What To Do About It, Katya S. Cronin
The Business, Entrepreneurship & Tax Law Review
Nearly every person in the United States currently has in their body dangerous amounts of chemicals proven to cause cancer, endocrine disruptions, liver and kidney failures, infertility, developmental difficulties, learning disorders, and immunodeficiencies. These chemicals are known collectively as “PFAS”—per- and poly-fluoroalkyl substances—and they were designed for heavily industrial applications. However, over the last two decades, they have surreptitiously and successfully migrated from heavy machinery and building sites onto the many items that consumers use to cook, serve, or store their food. With the FDA’s blessing, PFAS are now ubiquitous in food contact materials, from where they leach directly into …
The Risks Of Relying On Direct-To-Consumer Genetic Testing Service Agreements To Protect Genetic Information, Brennan Canuteson
The Risks Of Relying On Direct-To-Consumer Genetic Testing Service Agreements To Protect Genetic Information, Brennan Canuteson
The Business, Entrepreneurship & Tax Law Review
A consumer’s unique genetic code is their most intimate piece of personal data. Many federal laws concerning the privacy and nondiscrimination of health data are outdated, and most are related to healthcare providers instead of commercial services. To ensure that direct-to-consumer (“DTC”) genetic testing companies do not misuse a consumer’s unique genetic code, consumers rely on contractual agreements to protect their genetic information. DTC contractual protections are insufficient for several reasons: (1) consumers may not understand or read the agreement, (2) the company can modify the privacy statement, (3) the company could breach the agreement, and (4) new DTC companies …
Vaccine Hesitancy: Experimentalism As Regulatory Opportunity, Ana Santos Rutschman, Timothy L. Wiemken
Vaccine Hesitancy: Experimentalism As Regulatory Opportunity, Ana Santos Rutschman, Timothy L. Wiemken
The Business, Entrepreneurship & Tax Law Review
This issue on patient innovation has prompted us to explore problems related to departures from official vaccination schedules. Vaccine confidence has been plummeting across the world. In this essay, we argue that a more granular understanding of vaccine hesitancy—and ultimately a more finely tuned regulatory framework—is needed to reflect the current behavioral heterogeneity among indicated patients who choose to forego or delay administration of recommended vaccines. In particular, we focus on a phenomenon we term “vaccine staggering:” a departure from vaccination schedules in the form of delays in receiving one or more vaccines, which is motivated by the desire to …
A Delicate Balance: Limiting Consolidation In Agricultural Seed Markets Without Stifling Innovation, Justin Brickey
A Delicate Balance: Limiting Consolidation In Agricultural Seed Markets Without Stifling Innovation, Justin Brickey
The Business, Entrepreneurship & Tax Law Review
Agricultural seed markets have experienced significant consolidation over the past fifty years, apparently driven by private investment in research and development (“R&D”) made profitable through extensive intellectual property protections. The current intellectual property law regime on plants allows an innovator to obtain a wide variety of protections on new plant varieties, whether created through natural breeding processes or genetic engineering. Investment has paid off and the United States has experienced significant benefits through increased productivity, meaning we produce significantly more food today without using more land than our grandparents. However, agricultural markets deserve, and are often given, unique consideration because …
No Pay No Play: Not Okay? Analyzing The Constitutionality Of Missouri’S No Pay No Play Statute Following Jiles V. Schuster Co., Jorell Kuttenkuler
No Pay No Play: Not Okay? Analyzing The Constitutionality Of Missouri’S No Pay No Play Statute Following Jiles V. Schuster Co., Jorell Kuttenkuler
The Business, Entrepreneurship & Tax Law Review
This article analyzes the effects of Jiles v. Schuster Co. by looking at the case governing the decision, Watts v. Lester E. Cox Med. Ctrs. Evidence suggests Missouri has not historically upheld the “inviolate” right to a jury determination of damages, as established in that case, and thus casts doubt on the final decision reached in Watts v. Lester E. Cox Med. Ctrs. In Watts, the Supreme Court of Missouri found that statutory caps on non-economic damages stemming from medical malpractice were unconstitutional. Recent cases, such as Jiles, support the conclusion that the No Pay No Play statute falls within …
On The Effort To Discover And Eliminate Offshore Tax Abuse, Christian Hodgson
On The Effort To Discover And Eliminate Offshore Tax Abuse, Christian Hodgson
The Business, Entrepreneurship & Tax Law Review
The practice of tax evasion includes dumping money into secretive offshore accounts to shield financial assets from discovery. U.S. taxpayers have used jurisdictions with low tax rates and secretive banking practices to store unreported financial assets. If the taxpayer chose not to report foreign assets, the existence of these accounts often remained undetected by the U.S. The uncollected taxes from these accounts was a justification for congressional action. The ability of the wealthy to take advantage of tax evasion and avoidance could be contributing to wealth inequality. The congressional response to offshore tax evasion includes the Bank Secrecy Act of …
Cleaning Up And Cashing Out: Using Financial Incentives To Increase Missourians Use Of Solar Energy And Decrease Missouri’S Dependence On Imported Coal, Douglas Mann
The Business, Entrepreneurship & Tax Law Review
Climate change is one of the biggest threats to the human species. Unlike other historical threats to species, this threat is caused by humans themselves. Climate change (a product of a rise in average global temperature due to carbon emissions) is causing extreme weather patterns, droughts, mass migrations, among other catastrophic consequences. The state of Missouri is particularly guilty of carbon emissions. Missouri has one of the dirtiest energy grids in the nations. If Missouri residents were to switch from fossil fuel-generated electricity to residential solar energy systems, there could be a drastic reduction in Missouri’s carbon footprint. The Missouri …
No Cap: Analyzing The Kansas Supreme Court’S Decision To Overturn Caps On Non-Economic Damages In Hilburn V. Enerpipe Ltd., Raymond T. Rhatican
No Cap: Analyzing The Kansas Supreme Court’S Decision To Overturn Caps On Non-Economic Damages In Hilburn V. Enerpipe Ltd., Raymond T. Rhatican
The Business, Entrepreneurship & Tax Law Review
In the summer of 2019, the Kansas Supreme Court ruled that the state legislature’s cap on non-economic damages violated the state constitution’s right to trial by jury. In doing so, the Kansas high court overturned its own precedent in Miller v. Johnson, finding that the “inviolate” right to trial by jury is not subject to legislative meddling. Kansas also joined several other states, including Missouri, in rejecting a strained fact-law distinction employed by most states which uphold such caps in the face of right to jury challenges against the backdrop of “inviolate” constitutional language. There is little to no “rational …
Tax Ethics And Legal Indeterminacy, Bret N. Bogenschneider
Tax Ethics And Legal Indeterminacy, Bret N. Bogenschneider
The Business, Entrepreneurship & Tax Law Review
The modern framework of professional tax ethics is often given in reference to famous quotations of Justice Oliver Wendell Holmes or Judge Learned Hand. The common quote from Holmes is that “the very meaning of a line in the law is that you may intentionally go as close to it as you can if you do not pass it”; Hand’s quote is that “there is nothing sinister in so arranging affairs as to keep taxes as low as possible . . . [a taxpayer] is not bound to choose that pattern which will best pay the Treasury; there is not …
A Little Overlap Never Hurt Anyone: Overlapping Ip Rights And Oracle Am., Inc. V. Google Llc, Evan Weidner
A Little Overlap Never Hurt Anyone: Overlapping Ip Rights And Oracle Am., Inc. V. Google Llc, Evan Weidner
The Business, Entrepreneurship & Tax Law Review
Intellectual property (“IP”) protections have traditionally been mutually exclusive; an innovator who obtains one type of protection could not obtain another on the same invention. Though the possibility of overlapping IP rights has changed substantially over the years, the general opinion remained one of disapproval until recently. In Oracle Am., Inc. v. Google LLC, the Federal Circuit voiced approval of overlapping IP rights. This article examines the history of overlapping IP rights and advocates that the Federal Circuit’s acceptance of such an overlap is the proper standard.
The Right Of Reattribution, Brian L. Frye
The Right Of Reattribution, Brian L. Frye
The Business, Entrepreneurship & Tax Law Review
In some countries, copyright gives authors a “right to withdraw” works they disapprove. While the United States has no right to withdraw, it does have a practical equivalent. Authors can simply stop publishing a work, and refuse to allow anyone else to publish it. Of course, existing copies will still circulate. Still, restricting the supply of a work can still help reduce its public profile. After all, out of sight, out of mind. But there’s a problem. The whole purpose of copyright is to encourage authors to create works of authorship for the public to consume. Indeed, the government uses …
The Mighty Waves Of Regulatory Reform: Regulatory Budgets And The Future Of Cost-Benefit Analysis, James Broughel
The Mighty Waves Of Regulatory Reform: Regulatory Budgets And The Future Of Cost-Benefit Analysis, James Broughel
The Business, Entrepreneurship & Tax Law Review
In the past 70 or 80 years, there have been three “waves” of reforms to the process of creating and managing U.S. federal and state regulations. The first wave began in 1946 with the passage of the federal Administrative Procedure Act, after which states went on to pass and formalize their own administrative procedures. The second wave began decades later in the mid-1970s, ushering in the era of cost-benefit analysis reforms for regulations. This article focuses on the third wave of regulatory reforms that appears to be sweeping the nation and includes a prediction that the next wave may include …
Restoring Internet Freedom As An Example Of How To Regulate, Jerry Ellig
Restoring Internet Freedom As An Example Of How To Regulate, Jerry Ellig
The Business, Entrepreneurship & Tax Law Review
Thomas Lambert’s How to Regulate urges regulators to diagnose the extent and causes of the problems they seek to solve and consider the benefits and costs of alternative solutions. It also warns that government officials are affected by the incentives and knowledge constraints they face, and regulations should be designed to mitigate this problem. The Federal Communications Commission’s Restoring Internet Freedom order provides examples of these principles in practice. In its assessment of blocking, throttling, paid prioritization, and other general business conduct of broadband providers, the order first utilized economic research to identify the extent and causes of the underlying …
Be There In A Tif: What Is Tif And Missouri's Need Of Reform, James Bernskoetter
Be There In A Tif: What Is Tif And Missouri's Need Of Reform, James Bernskoetter
The Business, Entrepreneurship & Tax Law Review
Tax Increment Financing (“TIF”) is an economic development tool used by local municipalities to lure investment to areas that would not normally receive any. The process starts by having a local municipality or developer propose a redevelopment plan for a particular area. This area must fall into a statutory definition to be eligible for TIF and a “but-for” analysis is required, along with a proposal to a TIF commission. They then will move to approve or disapprove the proposal; if approved, the plan can be implemented for a defined duration. During the implementation, the purpose is for the investment plan …
Madison And Shannon On Social Media, Justin "Gus" Hurwitz
Madison And Shannon On Social Media, Justin "Gus" Hurwitz
The Business, Entrepreneurship & Tax Law Review
The Internet has changed speech, and our traditional understandings of speech regulation are struggling to adapt. This article argues that the Internet has tipped the quantity of information that individuals are exposed to beyond the point which they are able to meaningfully process. This article draws from a range of fields— from Information Theory, to cognitive psychology, to informatics—to provide both empirical and theoretical support for the idea that there is a limit to how much information individuals can meaningfully process and that we have surpassed that limit. This argument poses a direct challenge to bedrock First Amendment concepts such …
Regulatory Reform At The State Level: A Guide To Cutting Red Tape For Governors And Executive Branch Officials, Justin D. Smith
Regulatory Reform At The State Level: A Guide To Cutting Red Tape For Governors And Executive Branch Officials, Justin D. Smith
The Business, Entrepreneurship & Tax Law Review
This article provides recommendations for governors and other executive branch officials to consider when implementing regulatory reform. Studies have shown that regulatory reform is needed because of the substantial impact on the economy, consumers, and businesses. Recent technological advances have allowed regulations to be quantified by a metric known as regulatory restrictions, which counts uses of “shall,” “must,” “may not,” “prohibited,” and “required.” Quantifying regulatory restrictions allows for comparison of the regulatory scope between states. State-level regulatory reform directed by governors has primarily occurred in three waves following elections in 1994, 2010, and 2016. These reforms have achieved significant results …
No Such Thing As Partial Per Se: Why Jefferson Parish V. Hyde Should Be Abolished In Favor Of A Rule Of Reason Standard For Tying Arrangements, Matthew Hodgson
No Such Thing As Partial Per Se: Why Jefferson Parish V. Hyde Should Be Abolished In Favor Of A Rule Of Reason Standard For Tying Arrangements, Matthew Hodgson
The Business, Entrepreneurship & Tax Law Review
For more than a century, antitrust law has operated under two rules of analysis: rule of reason and per se. In 1984, however, the Supreme Court fabricated a new standard for a particular type of antitrust offense, referred to as the “partial per se” rule. This rule confuses and obscures the analysis taking place in tying arrangements and has no place in American jurisprudence. The rule should be abolished, and in its place, the Court should adopt the rule of reason analysis and elements suggested by Justice O’Connor in the very case from which this “partial” rule originated. By doing …
The Need For Centralized Government To Encourage A Decentralized Energy Grid, Andrew Dickerson
The Need For Centralized Government To Encourage A Decentralized Energy Grid, Andrew Dickerson
The Business, Entrepreneurship & Tax Law Review
Global warming and the subsequent climate change caused many nations and states to rethink energy production and consumption. In place of carbon-emitting energy sources, countries adopted renewable energy sources. However, in the United States, use of these energy sources, while available, is largely hampered by a lack of uniformity in state regulations. While net metering acts, tax credits, and rebates incentivize homeowners and some businesses to incorporate these energy sources, there are still several obstacles to the nation’s substantial reliance on renewable energy.