Volume 16, Issue 1 (Winter 2015)

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Narrow Networks, the Very Sick, and the Patient Protection and Affordable Care Act: Recalling the Purpose of Health Insurance and Reform
(Minnesota Journal of Law, Science & Technology, 2015) Blake, Valarie
Consumers purchasing health insurance on both state and federally-run exchanges are finding that affordable premiums may come at the cost of restricted provider choice. So-called narrow networks are increasingly popular in individual, small group, and large group insurance markets as a means for insurers to curb premiums and compete for business. As PPACA regulations limit medical underwriting and homogenize insurance offerings, insurers are agreeing to nudge their patients to a narrow selection of providers in exchange for better reimbursement rates and lower premiums. This may mean wider availability of health insurance for the public, increased enrollment for insurers, and cost-savings across the health care system. In this article, the author argues that narrow networks, in their most extreme, create the very same access issues that the PPACA attempts to eliminate. By sorting the population (and insurance premiums) according to healthy and sick, they pose distributive justice challenges, strain the goals of social health insurance, and create barriers to care for those who most need health insurance (the very sick who access tertiary care); particularly if narrow networks continue to exclude academic medical centers, as this first year on the exchanges has foreshadowed.
The Army Corps of Engineers: Comprehensive Floodwater Retention in the Red River Basin and the Fargo-Moorhead Flood Diversion Project
(Minnesota Journal of Law, Science & Technology, 2015) Walls, Michael L.
This Note will address major flood management issues in the Red River Basin (RRB) that continue to cause disagreement between RRB stakeholders. This Note focuses on the RRB because it provides an excellent case study for comparing government decision-making in response to frequent flood events. The RRB contextualizes major flaws in comprehensive floodplain management noted by scholars, lawyers, scientists, and those critical of the Corps’ planning process. Disagreement over the massive Fargo-Moorhead Flood Diversion Project (Diversion project) underway in the RRB captures much of the discord currently plaguing the Corps’ interstate flood management strategies.
CLS Bank International v. Alice Corp. Pty. at the Federal Circuit: The Dilemma Presented by Computer Implementation of Abstract Ideas and How the Supreme Court Missed a Chance to Clear It Up
(Minnesota Journal of Law, Science & Technology, 2015) Peske, Nathan
CLS Bank International v. Alice Corp. Pty. illustrates the conflicted state of case law on the patentability of software. Patents are not allowed to claim abstract ideas. Software, by its very nature, must incorporate abstract ideas. There is currently no defined test for whether a patent that incorporates abstract ideas impermissibly claims those ideas. This case potentially called into doubt the validity of hundreds of thousands of software patents. This Comment analyzes the criteria for determining when a patent impermissibly claims an abstract idea. Section I examines the relevant patent law and controlling cases analyzing patents that incorporate abstract ideas. Section II describes the Federal Circuit’s opinion in CLS Bank International v. Alice Corp. Pty. Section III analyzes the Supreme Court’s subsequent decision and proposes a threeprong test to evaluate whether a patent that incorporates an abstract idea is valid or not. This Comment concludes that the Supreme Court should adopt the proposed three-prong test as a clear standard for evaluating patents that claim an abstract idea.
A Public Health Imperative: The Need for Meaningful Change in the Trans-Pacific Partnership’s Intellectual Property Chapter
(Minnesota Journal of Law, Science & Technology, 2015) Patel, Roma
In order to address the immense public health inequity in trade and patent law practices, the World Trade Organization (WTO) administered the Agreement on Trade-Related Aspects of Intellectual Property Rights (widely known as TRIPS). The TRIPS Agreement employs various provisions to ensure public health needs are addressed through international trade; these provisions are referred to as “flexibilities.” The past two decades have seen an increasing number of developing nations successfully utilize the flexibilities provided by TRIPS, which aim to lower costs and increase access to medicine by facilitating the importation of generic formulas. While TRIPS has made progress by bringing public health needs on par with global patent rights, many countries have not yet amended their laws to incorporate full TRIPS flexibilities. An increasing number of bilateral and multilateral free trade agreements include intellectual property protections that greatly exceed the minimum intellectual property standards of TRIPS, thus hindering the use of such flexibilities. The advent of the TPP, a proposed trade agreement between twelve countries including the United States, potentially poses the most aggressive pharmaceutical intellectual property provisions to date. Part I of this Note will review the development of the TPP and its intellectual property provisions as well as the history of trade and medicine, particularly focusing on the restrictions of the TRIPS flexibilities. Part II will specifically discuss how the TPP’s intellectual property provisions will adversely impact global access to affordable medicines and a partner nation’s ability to utilize existing TRIPS flexibilities. Part II will also include recommendations to keep the TPP consistent with TRIPS in order to balance patent rights for the pharmaceutical industry with broader public health and bioethical goals.
Does Sharing Mean Caring? Regulating Innovation in the Sharing Economy
(Minnesota Journal of Law, Science & Technology, 2015) Ranchordás, Sofia
Sharing economy practices have become increasingly popular in recent years. From swapping systems to network transportation to private kitchens, sharing with strangers appears to be the new urban trend. Although Uber, Airbnb, and other online platforms have democratized access to a number of services and facilities, concerns have been raised as to public safety, health, and limited liability of these sharing economy practices. In addition, these innovative activities have been contested by professionals offering similar services who claim that the sharing economy is opening the door to unfair competition. Regulators are at a crossroads: on the one hand, innovation in the sharing economy should not be stifled by excessive and outdated regulation; on the other hand, there is a real need to protect the users of these services from fraud, liability, and unskilled service providers. This dilemma is far more complex than it seems, since regulators are confronted here with an array of challenging questions. First, can these sharing economy practices be qualified as “innovations” worth protecting and encouraging? Second, should the regulation of these practices serve the same goals as the existing rules for equivalent commercial services? Third, how can regulation keep up with the evolving nature of these innovative practices? All of these questions come down to one simple problem: too little is known about the socially effective ways of consistently regulating and promoting innovation. The solution to these problems requires analyzing two fields of study, both of which seem to be at an embryonic stage in legal literature: the study of sharing economy practices and the relationship between innovation and law in this area. This Article analyzes the challenges of regulating the sharing economy from an “innovation law perspective,” by arguing that these innovations should not be stifled by regulation, but should also not be left unregulated. This Article closes by suggesting that innovation in the sharing economy requires fewer, but broader rules that do not stifle innovation, but also impose a minimum of legal requirements that take into account the specificities of innovative sharing economy practices, and that are open for future developments.
Foreseeability Decoded
(Minnesota Journal of Law, Science & Technology, 2015) de Villiers, Meiring
This Article reviews the conceptual and doctrinal roles of the foreseeability doctrine in negligence law, and analyzes its application in cases where a new technology or unexplored scientific principle contributed to a plaintiff’s harm. It adopts the common law definition of foreseeability as a systematic relationship between a defendant’s wrongdoing and the plaintiff’s harm, and demonstrates translation of the concept into the language of science so that the common law meaning of the foreseeability doctrine is preserved. An analysis of the foreseeability of HIV/AIDS as a blood-borne risk illustrates application of the concept to contemporary issues in medical science.
The Nirvana Fallacy in Fair Use Reform
(Minnesota Journal of Law, Science & Technology, 2015) Shahshahani, Sepehr
This Article is about finding the right venue for fair use reform, a subject it approaches through a critique of recent legislative reform proposals. Fair use is possibly the most important doctrine in all of copyright. As such, it has attracted a large volume of critical commentary. Some of the commentary is in the familiar tradition of doctrinal scholarship—advising judges how best to interpret the fair use doctrine. But there is also another trend, increasingly prominent, that focuses on legislative reforms. This school of scholarship criticizes the fair use doctrine for providing too little certainty to users of copyrighted works and second-generation creators. To reduce this uncertainty it proposes a variety of solutions, such as promulgating rules to replace the governing standard or setting up special purpose administrative entities that would require congressional action. This Article criticizes proposed legislative reforms of fair use for being unrealistic. It argues that these proposals often contrast the present state of the law with a vision of the ideal state of affairs, but pay no attention to whether this nirvana vision has any chance of realization. They ignore real-world constraints, such as institutional dynamics that bear on the feasibility and desirability of their proposed reforms. Because they bear no relation to the reality of copyright legislation, the legislative solutions are destined to fail.
The Hidden Economy of HSC Transplantation Is Inconsistent with Prohibiting the Compensation of HSC Donors
(Minnesota Journal of Law, Science & Technology, 2015) Williams, Kristy
The Hematopoietic stem cell (HSC) transplantation industry relies on, and mandates, donor altruism. The National Organ Transplant Act (NOTA) prohibits the exchange of valuable consideration for HSCs collected from bone marrow to be used for transplant. At present, NOTA does not prohibit compensating donors for HSCs obtained from umbilical cord blood or peripheral (circulating) blood; however, the Health Resources and Services Administration (HRSA) has proposed expanding the NOTA prohibition to cover all HSCs. In any event, the reliance on altruism is currently so ingrained in HSC transplantation that bureaucratic barriers prevent donors from receiving compensation in situations where it would be legally permissible. Donors are the only parties in the HSC transplant chain who are not compensated for their involvement. HSCs are routinely treated as commodities being bought and sold in a hidden economy that crosses international borders. This shadow industry is underpinned by mandated donor altruism, and is also reliant on such altruism for its very existence. However, it is advantageous for all parties involved to encourage HSC donation. Not only would the compensation of donors increase the number and retention of donors, but it will also serve as an acknowledgement of the important contribution that donors make. This Article will focus on increasing HSC donations by repealing laws prohibiting compensation for HSC donation and permitting limited and regulated compensation for donors.
Consumer Cloud Robotics and the Fair Information Practice Principles: Recognizing the Challenges and Opportunities Ahead
(Minnesota Journal of Law, Science & Technology, 2015) Hauser, Kris; Proia, Andrew; Simshaw, Drew
Rapid technological innovation has made commercially accessible consumer robotics a reality. At the same time, individuals and organizations are turning to “the cloud” for more convenient and cost effective data storage and management. It seemed only inevitable that these two technologies would merge to create cloud robotics, “a new approach to robotics that takes advantage of the Internet as a resource for massively parallel computation and sharing of vast data resources.” By making robots lighter, cheaper, and more efficient, cloud robotics could be the catalyst for a mainstream consumer robotics marketplace. However, this new industry would join a host of modern consumer technologies that seem to have rapidly outpaced the legal and regulatory regimes implemented to protect consumers. Recently, consumer advocates and the tech industry have focused their attention on information privacy and security, and how to establish sufficient safeguards for the collection, retention, and dissemination of personal information while still allowing technologies to flourish. Underlying a majority of these proposals are a set of principles that address how personal information should be collected, used, retained, managed, and deleted, known as the Fair Information Practice Principles (FIPPs). This Article examines recent frameworks that articulate how to apply the FIPPs in a consumer setting, and dissects how these frameworks may affect the emergence of cloud-enabled domestic robots. By considering practical observations of how cloud robotics may emerge in a consumer marketplace regulated by the FIPPs, this research will help both the information privacy and robotics fields in beginning to address privacy and security challenges from a law and policy perspective, while also fostering collaboration between roboticists and privacy professionals alike.
Narrow Networks, the Very Sick, and the Patient Protection and Affordable Care Act: Recalling the Purpose of Health Insurance and Reform
(Minnesota Journal of Law, Science & Technology, 2015) Blake, Valarie
Consumers purchasing health insurance on both state and federally-run exchanges are finding that affordable premiums may come at the cost of restricted provider choice. So-called narrow networks are increasingly popular in individual, small group, and large group insurance markets as a means for insurers to curb premiums and compete for business. As PPACA regulations limit medical underwriting and homogenize insurance offerings, insurers are agreeing to nudge their patients to a narrow selection of providers in exchange for better reimbursement rates and lower premiums. This may mean wider availability of health insurance for the public, increased enrollment for insurers, and cost-savings across the health care system. In this article, the author argues that narrow networks, in their most extreme, create the very same access issues that the PPACA attempts to eliminate. By sorting the population (and insurance premiums) according to healthy and sick, they pose distributive justice challenges, strain the goals of social health insurance, and create barriers to care for those who most need health insurance (the very sick who access tertiary care); particularly if narrow networks continue to exclude academic medical centers, as this first year on the exchanges has foreshadowed.
Lessons from the Smartphone Wars: Patent Litigants, Patent Quality, and Software
(Minnesota Journal of Law, Science & Technology, 2015) Cass, Ronald A.
Commentators, public officials, and scholars have sounded alarms over the smartphone patent wars—hundreds of cases asserting infringement of patents by makers of smartphones and tablet computers—often suggesting broad, categorical “fixes” to problems this litigation reveals. In general, these recommendations sweep too broadly, throwing out good claims as well as bad and needed remedies as well as questionable ones. However, calls for attention along two margins promise improvements. One factor, the identity of the enterprise asserting patent rights, already is being used by courts in considering appropriate patent infringement remedies, but its use needs to be refined. The other factor, patent quality—especially in software patents, where the existence of parallel schemes of intellectual property protection exacerbates quality problems—is even more critical to the way the system operates. Addressing the patent quality issue (which is distinct from patent clarity or patent notice) can do more than other reforms to reduce costs without reducing innovation incentives.